Who Can Look at Employee Personnel Files?

In today’s online world, an employee’s right to privacy often conflicts with an employer’s need to maintain personnel files. Who has the right to access employee documents? To whom does employee information belong?

Employers and employees have the right to view employee personnel files. Employers may restrict employee access to certain parts of the files. They may ask that a manager be present when the employee looks at some documents. This article reviews some of the documents included in an employee file and who may view them.

What Is a Personnel File?

An employee personnel file collects documents business owners assemble on each employee. Even small businesses have lengthy files containing sensitive information about their workers. Some of these documents may include:

• Offer letters and job applications
• Employment contract
• Payroll records, I-9 forms and W-2s
• Employee benefits packages
• Employee background checks
• Drug test results
• Performance evaluations
• Disciplinary actions
• Termination letters

These documents are confidential information and are the private property of the business owner and the employee. An employee’s file contains personal information about the worker, such as their address, Social Security number, and medical information. It may also have proprietary business information that belongs to the company. These files must be secure.

Who Can View Personnel Records?

Some people within a company have the legal right to view personnel files. In a larger company, the human resources department may keep employee files and records separate for easy recordkeeping. Small businesses may have one person responsible for all files. How a firm handles its employee personnel files depends on their specific needs.

You should explain your personnel file management in your employee handbook. Give it to all new hires during the onboarding process. Explaining your policies early will ease everyone’s mind.

Human Resources

Human resources departments need access to employee files for hiring and firing purposes. They may need to handle payroll, employee benefits, vacation, medical leave, and other aspects of employment.

The HR department handles most employment records. Business owners should have a company policy that designates HR as the only department with access to an employee’s file.

Medical Records

Medical files should be separate from other employee files. Two federal laws, the Americans with Disabilities Act (ADA) and the Health Insurance Portability and Accountability Act (HIPAA), have strict requirements for keeping and storing medical files.

Only employers with more than 50 workers meet HIPAA eligibility requirements. They must offer enrollment in group health plans. Self-insured employers and small businesses are exempt from HIPAA. But all businesses should keep their health care information in a confidential file.

Employees

Some states have granted employees the statutory right to view their personnel files. A few states have extended the right to former employees as well. These laws also give the employer the right to restrict employee access to their files or limit the portions of the file viewed by employees.

State law may allow employees to copy or request copies of their files. Employers may ask the employee to pay the cost of duplicating the files. Employers do not have to provide copyrighted or proprietary information.

In other states, employers may want to have policies restricting access to employee records. The policies should explain how and when such review can happen and who else can see the records. This helps relieve any employee concerns over unauthorized viewing of their files.

Management

Managers, supervisors, and others involved in employee hiring and retention should have access to parts of employee personnel files. This is where performance reviews and disciplinary action records should be. Management needs access when reviewing employees for promotions, during layoffs and slowdowns, and when considering termination for cause.

Government Agencies

The Equal Employment Opportunity Commission (EEOC) is a government agency responsible for ensuring all employees receive fair and equal treatment under federal law. Not all employers fall under these laws. A small business must have at least 15 employees to meet EEOC requirements.

If you own or manage such a business, you must keep personnel records for one year. You must keep payroll records for at least two years. Employers covered by federal anti-discrimination laws must also keep records that explain the basis for paying different wages to employees, such as job evaluations, collective bargaining agreements, and related documents. The EEOC may also request examples of posted job descriptions.

If any claims are filed against an employer, the EEOC or other agencies may demand these files and records. You may receive a formal subpoena for your files or records.

The ‘After-Discovered Document’

A problem that sometimes arises is the "after-discovered document." A terminated employee may find a document in their personnel file that they did not see before termination. This leads them to believe it appeared afterward to justify their firing.

Allowing employees full access to their personnel files can help avoid this issue. It relieves one stressor of employee termination.

Avoid Costly Mistakes Involving Employee Files: Meet With an Attorney

Hiring a lawyer to help you with your business’ employee personnel files is always a good way to protect against potential lawsuits. Seek legal help from a small business attorney specializing in employment law to understand your state laws and learn who may view an employee’s personnel file.