(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.
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