Cathie's Corner Blog

(Published October 5, 2009)

There have been a lot of questions recently about personnel files and an employee's right to access them.  They've come from both sides of the desk; employers asking if they are required to provide access, and employees asking if they are guaranteed access.  I even had one employee asking if he could be granted access to a co-worker's file, which, of course, is a no-no.

The legal answer to whether an employer must provide employees access to their own personnel files is state specific.  Some states do not require it; other states do.  Of the states that do, some states require that the employee be given a copy; others only allow them to view the file.  Some states limit what documents can be seen or copied; other states do not.  Additionally, some states also give an employee the right to place a rebuttal in their file, if there is something in the file with which the employee disagrees.

Employees often have a mistaken idea of what kind of information is in their personnel files.  They have visions of documentation that they have never seen, which will somehow prove that they've been treated illegally.  I'm not quite sure what it is they specifically envision.  Correspondence from managers making damaging statements, maybe?  In many cases, employees ask to see their personnel file because they are convinced it is the key to making their case for illegal discrimination or what have you.

Let me say right now that if they are right, then you need to do two things yesterday: Review those personnel files yourself, and get your managers in for a to-the-point training class on employment laws and correct supervisory procedures.

But I'm going on the assumption that most of you treat your employees legally, and, therefore, there is no such "proof" in the files.

I have heard some employers in states where employees have no legal right to access their file take the stance that they would not voluntarily give employees access.  Although the employers have this right, in my opinion, they are being very shortsighted.  Blocking access is the very best way I can think of to ensure that the employee will continue to believe that they have been treated illegally and that the file will somehow "prove" it.  After all, they reason, if the employer didn't have something to hide in my file, why wouldn't they let me see it?

And why wouldn't you?  There shouldn't be any issues discussed in the personnel file that the employee is not aware of, be it as innocuous as a vacation request or as subjective as a performance review.  Whether they've seen the actual documentation or not before it goes into the file, they should at the very least be aware that it exists.  There are some things that are obvious, such as W-4s, benefits enrollment forms, and the aforementioned vacation requests.  I'm not saying you have to go out of your way to make them aware that this kind of documentation is in their files.  They know that without being told, or should.

But if you put any kind of disciplinary record, even if it's just a note about a verbal warning, into the file, the employee should know that it's there.  They should be aware of any kind of performance evaluation.  And if they want to see them, by all means allow it, whether the state requires it or not.  They should have seen most of the documents anyway; in fact, they should have been given the option of signing most of them.  What's the harm in letting them see the documents again?  None, in my opinion.  And what's more, it may do some good.  If they are given the opportunity to see that there's nothing in the file indicating illegal treatment, and that the employer has no secret documents hidden away, they're much less likely to take legal action, in my experience.

If we're open and honest with the employees, they're more likely to be open and honest with us!

Catherine Bannon is an HR consultant in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting practice.

(Published June 29, 2009)

How often do you audit your benefits plans? It can't be often enough, I sometimes think.

A couple of years ago, I came into a company just after a lazy Benefits clerk had been fired for cause. Among the causes: She continually forgot to notify Blue Cross when an employee was terminated. She'd cancel them in the HRIS system, but never notify the health insurance carrier. When we audited the plan, we found that we were paying approximately $85,000 a quarter for health insurance on employees who were no longer with us and who had not elected COBRA.

Where I am now, we recently discovered that we were paying for health insurance on a fellow who had been dead for two years. This triggered a "death audit," which is still ongoing — he wasn't the only one.

There are several of us still laughing about another incident that occurred the other day. We're in an open enrollment period for a new benefit we're rolling out next month, a spouse and dependent life program. Spousal equivalents (SE) are allowed to enroll, as long as the employees complete an affidavit confirming that the SEs meet our definition. We have a standard affidavit on file that the employees can easily access.

A fellow sent along a non-standard affidavit, which caught my attention. He was looking to insure a spousal equivalent and two children. His notarized statement said, "Joan Johnson [not the actual name] is my domestic partner, living with me at [address]."

Well, I don't know what your first thought would be, but mine was to first, confirm the address and second, to see if he had a standard affidavit on file. The standard one spells out certain requirements, such as the length of time they've been together and that they have joint financial records. The address we had on file is in the same town, but is a different street address. He had family coverage, covering the same two children he wanted to put on the new life benefit, but we had a spouse, Maggie (again, not the real name), listed instead of the spousal equivalent he had on the life enrollment form.

Even then, I assumed that he had been divorced, was covering a spouse per court order, and had neglected to send in an address change. But we found we had no copy of a divorce decree on file. That was when I went to his manager.

The manager did some checking, and came back to inform me that the information we had in our computer records is correct. We didn't have a divorce decree on file because he is not divorced. He is still married and living at the home. Evidently, he just wanted to cover…his girlfriend?

The employee claimed to have filled out the wrong form; he thought he was applying for supplemental life (which we also offer) and wanted to make her and his children the beneficiaries.  Why am I having a hard time believing him?

And to think that if he had used a standard affidavit, I never would have noticed. Until, somewhere down the line, someone audited the plan!

Catherine Bannon is an HR consultant in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting practice.