Who Can Look at Employee Personnel Files?
In addition to the employer, employees often have the right to view certain portions of their own employee personnel files as well. In most circumstances, employee personnel files should be treated as private records that belong to you and the corresponding employee. Many times these files contain very private information like performance evaluations, salary levels and private reports. You don't want to leave these files open for anyone to go through.
Who Has the Legal Right to View Personnel Records?
However, certain employees often have the legal right and need to view information that is contained within personnel files. For instance, supervisors may often need to look at past performance evaluations when making decisions about who to promote within the company. Human resources may have to look through personnel files in order to figure out what kind of salary to offer an incoming employee that is hired to replace someone. Lastly, employees in most states are allowed to view their own personnel files.
You should always treat personnel files just like any other private documents within the company. Normally personnel records are kept within a locked file cabinet that only certain people have access to. You should make sure that these files are only available to the people that have a legitimate and valid reason to look at the files.
As a suggestion, you may want to set up a company policy that the only people that are allowed to access an employee's personnel record are the human resources manager, the employee's supervisor or manager, and the employee himself. By setting up such a policy, you will protect the confidentiality of these files, your employee's privacy and also limit the opportunities for false documents to get into the files. In addition, by having a policy in place, you have the right to discipline anyone that breaks the policy.
Since, like everything else these days, employee personnel files are likely to be available in electronic form, your policy should also address who has access to the databases where employee records are kept. You should limit electronic access to those people and groups listed above.
Medical Records Should Be Kept Separate
There are special rules that you need to be careful of when you decide to keep medical records of your employees. The Americans with Disabilities Act (ADA) has very strict rules regarding the handling and storage of employee medical records. Employers that must abide by the ADA have to keep medical records confidential and separate from the personnel files of their employees.
Information contained in these medical records may only be given to safety workers or those administering first aid, and only if the information is necessary to treat the employee or for evacuation procedures. In addition, the medical information can be given to the employee's supervisor if the employee has a disability that requires special (but reasonable) accommodation. Lastly, the information can be given to government officials as required by law, and to insurance companies that require a medical examination.
In addition to the ADA, the Health Insurance Portability and Accountability Act (HIPAA) also places privacy requirements on employers that enroll their employees in group health care plans. However, employers that administer their own health care plans and have less than 50 employees enrolled do not have to comply with the requirements of HIPAA.
Employers that are fully covered by HIPAA must designate a person to be the "in-house privacy official," adopt and apply the policies and procedures mandated by HIPAA, and notify their employees about their privacy rights.
There are also some states that have their own laws designed to protect the privacy of employee medical records. These laws often restrict the people that have the right to view medical records, and also limit the reasons that can be given for viewing employee medical records.
An Employee's Right to View Personnel Files
A large number of states have laws that give current employees (as well as former employees in some states) the right to access and view their own personnel files. How much of the file that an employee is allowed to view varies from state to state. However, if your state allows employees to inspect their own personnel files, these laws also often give you the right to have yourself or another supervisor present during the inspection to ensure that no improper documents are added to any personnel files.
In some states, employees are allowed to make copies of certain documents contained within their personnel files. As an example, a state law could allow an employee to have copies of all documents relating to their salaries, but not to any performance reviews. If an employee wants a copy of a certain document within their file that they have a legal right to, be sure that you, and not the employee, are the one to make the copy.
In most circumstances, you will not be required to show an employee their entire personnel file. If, for example, you have been using the personnel file to collect information about an upcoming termination for cause, you may not have to show the employee that part of their file. In addition, if files in an employee's personnel file also include private information about another employee, you may not have to show that document to your employee.
If your state does not have laws that specifically allow employees to view their own personnel files, you still may want to institute a company policy that allows employees to see certain portions of their files.
The "After Discovered Document"
By allowing employees to view their personnel files, you may avoid the problem of the "after discovered document." This problem arises when terminated employees find documents in their personnel files that were not present before they were fired. Such situations often lead employees to believe that the documents were created after the termination. However, if you allow your employees to view their personnel files before termination, you can potentially avoid this problem.
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 idea in order to protect against any potential lawsuits. Seek legal assistance now from a small business attorney who specializes in employment law to understand the laws in your state and to learn specifically who is allowed to see the contents of an employee's personnel file.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.