“The truth about a man lies first and foremost in what he hides.”
– Andre Malraux
ACTUAL “CASE HISTORY”: It’s happened to us so many times, I couldn’t count them if I tried. In the “discovery” phase of lawsuits or arbitrations, we request a copy of our client’s Human Resources file for evidence of improper behavior by supervisors, HR personnel, or others. Sure enough, nearly every time we do so either (a) the employer’s attorneys claim there is no HR file, or (b) the employer’s attorneys claim the HR file is “privileged” or “confidential,” or (c) the employer’s attorneys simply refuse to provide us with a copy. Just as commonly, either the judge in the case, or the arbitrators in the arbitration, then order them to do so.
Upon inspection, what do we find in our clients’ Human Resources files? Usually the most mundane of documents, including (i) employment applications, (ii) payroll authorization forms, (iii) commendations, (iv) warnings regarding performance or conduct, (v) attendance and vacation records, and (vi) performance appraisals.
So, you may ask yourself, “Why do employers’ attorneys fight like the dickens to keep these files unseen?” It is because at times we find unusual, unexpected, almost unbelievable material in those very same HR files, that is, documents or notations that point to improper conduct or illegal motivations. These are just a few examples:
A. Nasty comments denigrating our client’s physique and personality;
B. Anonymous, unproven allegations about our client’s social life;
C. Information about our client’s medical history that, by federal law, should not be there;
D. The fact that our client had several times attempted in-vitro fertilization;
E. Drafts of performance appraisals that were plainly incorrect;
F. A suggestion that our client was “not loyal to management;”
G. In one case, the handwritten phrase “a pain in the __ ;”
H. A document with the client’s signature on it, but forged; and
I. My “all time favorite:” a statement that our client had unspecified “unsavory habits.”
This misinformation, rank innuendo and improper information, by law, by company policies, and by plain old decency and common sense, should not be kept in HR files, which may be available to wrongly influence important decisions taken and to be taken by supervisors, managers, colleagues and others. The above examples are just a few of the many things we have seen in HR files; who knows what was removed or deleted before we got access!
Because incorrect, improper and illegal information can find its way into HR files, employees can find themselves unfairly stymied in their career development, unduly denied deserved raises and promotions, and even wrongly chosen for layoff.
These days, almost everyone has heard it said that it is wise and prudent to review your credit history to ensure that costly errors are not found there. It is without doubt that it is wise to check your bank statement each month to make sure you are credited with every deposit, and you have not been debited with someone else’s withdrawal. It is for this very same reason that we suggest all employees periodically seek to review the contents of their HR files.
Are you permitted to do so? Some states give all employees the legal right to review and copy items in their HR files. Some states give that right only to public employees. And some states have no laws on this subject. [A state-by-state summary of these laws can be found below.] Some companies have policies or practices permitting employees to do so.
LESSON TO LEARN: It may be wise to consider requesting an opportunity to view the contents of your HR file to ensure that there is nothing in the file that unfairly, improperly or even illegally stymies your career development. It may be especially wise to do so if you have good reason to believe your inexplicable lack of advancement may be attributable to information in your file.
Will such a request be successful? That may depend on the basis for your request. By your state’s law, you may have a legal right to do so. By your employer’s policies, you may have a right to do so. For several different reasons, you may have a good argument to do so. One thing is for sure: there is no law or rule that says you cannot make a respectful request.
Will your request, in itself, “brand” you as someone who is “difficult?” Perhaps; that is a matter to be considered. Some may see it that way. Others may see you as a sophisticated, careful person. There is always some potential risk in standing up for yourself; that can’t be denied.
WHAT YOU CAN DO: Here is the six-step approach we suggest you consider taking:
1. Review the list of state law provisions below: We have assembled a list of the laws in the 50 states regarding review of HR files, as of January, 2010. See if your state gives you a right to review (and possibly copy) your HR file.
2. Assemble your best reason(s) for having a right to review: The one thing that will help your request is its basis, that is, the reason underlying your right to see your file. It may be the law in your state, your employer’s policy, your employer’s practice, why a certain concern has arisen, or why it is you have some suspicion of error.
3. Prepare a simple written request: Your request to see your HR file should be written, and not spoken. It should be simple, to the point, without emotion or extra verbiage. The more you write, the more your HR representative may find a reason not to permit your review.
4. Transmit it by email: As with all important work-related memos or letters, send it by email. This establishes proof of sending, and what day and time it was sent, and thus gives the recipient the understanding that he or she may be held accountable for not responding, or not responding responsibly.
5. If your request is granted, attend with pen and pad: Make a date for inspection, and take a pen and pad with you to take notes. You may ask if they will make copies of certain materials for you, or if you can make your own copies.
6. If your request is denied, request assurances: If you are told you have no right to review your HR file, and you think they may be right in that, we suggest you request written assurances (a) that everything in your HR file is accurate, and (b) that any inaccurate materials have been removed.
If you would like to obtain a model memo requesting an opportunity to review your HR file [click here]
P.S.: If you would like to speak with me directly about this or other workplace-related subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. (Even 5-minute “Just One Question” calls). Just [click here.] Evenings and weekends can be accommodated.
Here is a state-by-state list of laws on employee reviews of HR files, as of January, 2010. (Note that we cannot guarantee accuracy; only attorneys licensed in your state can provide accurate citation to legal authority.)
Alabama
Private Employees – no law on subject
School District employees – yes (Code of Alabama Title 16 Section 22-14)
State employees – can review disciplinary documents (Code of Alabama Title 36 Section 26-27.1)
Alaska
All employees have a right to review their HR files. (Alaska Statute / Section 23.10.430)
Arizona
State employees – yes (Arizona Administrative Code Title 2 Chapter 5, 105)
Private employees – no law on subject
Arkansas
Public employees – yes (Arkansas Freedom of Information Act – examination and copying of public records C 25-19-103 through 105)
Private employees – no law on subject
California
All employees have a right to their HR files. (California Labor Code Section 1198.5)
Colorado
No laws regarding employee rights to review HR files.
Connecticut
All employees have a right to review their HR files. (Con. Gen. Ste. Chapter 563a Sections. 31-128a to 31-128i)
Delaware
All employees have a right to review their HR files. (Delaware Title 19 Sections 730-735)
District of Columbia
Employees of District – yes (District of Columbia Sections 1-631.05 Employee access to official personnel record)
Private employees – no law on subject
Florida
Public employees – yes (Florida Public Records Act)
Private employees – no law on subject
Georgia
Public employees – yes (Georgia Public Records Act. Georgia Code 50-18-72(a) 11.3(B) v)
Private employees- no law on subject
Hawaii
No laws regarding employee rights to review HR files.
Idaho
Public employees – yes (Idaho Public Records Law)
School district employees – yes (Idaho Public Records Law)
Private employees – no law on subject
Illinois
All employees have a right to review their HR files. (Personnel Record Review Act. 820 Illinois Revised Statute 40/2-12)
Indiana
Public employees – yes (Indiana Code Access to Public Records 5-14-3-4b.(8))
Private employees – no law on subject
Iowa
All employees have a right to review their HR files. (Iowa Code Title III Section 91B.1)
Kansas
No laws regarding employee rights to review HR files.
Kentucky
State employees – yes (Kentucky Open Records Law 61.884)
Private employees – no law on subject
Louisiana
No laws regarding employee rights to review HR files.
Maine
All employees have a right to review their HR files. (1x a year) (Maine revised Statute Annotated, Title 26 Section 631)
Maryland
Public employees – yes (Maryland Annotated Code Section 10-612 to 621)
Private employees – no law on subject
Massachusetts
All employees have a right to review their HR files. (Massachusetts General Laws Annotated Chapter 149: Section 52c)
Michigan
All employees have a right to review their HR files. (Bullard-Plawecki Employee Right to Know Act (Act 397 of 1978) and Public Sector employees under the Freedom of Information Act (Act 442 of 1976))
Minnesota
Private employees – yes, if over 20 employees right to put a rebuttal in file (Minnesota Statute 13.04 Subdivision 3)
Public employees – yes (Minnesota Statute 181.960-.966)
Mississippi
No laws regarding employee rights to review HR files.
Missouri
No laws regarding employee rights to review HR files.
Montana
No laws regarding employee rights to review HR files.
Nebraska
Private employees – no laws on subject
School district, county and state employees – yes
School district (Code 79-8.109)
County (Nebraska Revised Statute 23-2507(4))
State (Administrative Code Title 273 Chapter 11 Section 001-003)
Nevada
All employees have a right to review their HR files. (Nevada Revised Statute 613.075)
New Hampshire
All employees have a right to review their HR files. (Revised Statute Title 23, Section 275:56)
New Jersey
No laws regarding employee rights to review HR files.
New Mexico
No laws regarding employee rights to review HR files.
New York
No laws regarding employee rights to review HR files.
North Carolina
State and some local municipalities – yes (General Statutes Chapter 126-24 and 25)
Private employees – no laws on subject
North Dakota
State employees – yes (N.D. Century Code 54-06-21)
Private employees – no laws on subject
Ohio
Public employees – yes (Ohio Public Records Act, Ohio Revised Code 149.43)
Private employees – no laws on subject
Oklahoma
No laws regarding employee rights to review HR files.
Oregon
No laws regarding employee rights to review HR files.
Pennsylvania
All employees have a right to review their HR files. (Pennsylvania Inspection of Employment Records Law (Act of 1978, Public Law 1212, No. 286))
Rhode Island
All employees have a right to review their HR files. (General Laws of Rhode Island Chapter 28-6.4)
South Carolina
No laws regarding employee rights to review HR files.
South Dakota
Private employees – no laws on subject
State employees – yes (Codified Laws Chapter 3-6A-31)
Other public employees – no laws on subject
Tennessee
Private employees – no laws on subject
State employees – yes (Tenn. Code 8-50-108)
Other public employees – no laws on subject
Texas
Public employees – yes (Texas Open Government Law, Government Code Chapter 552.102)
Private employees – no laws on subject
Utah
Public employees – yes (Utah Code – Title 67, Chapter 18)
Private employees – no laws on subject
Vermont
Public employees – yes (VT State Title 1 317(c)(7))
Private employees – no laws on subject
Virginia
Public employees – yes (Code of Virginia Section 2.2-3704 and Section 2.2-3705.1.1)
Private employees – no laws on subject
Washington
All employees have a right to review their HR files. (1x per year) (Washington State Revised Code 49.12.240-260)
West Virginia
No laws regarding employee rights to review HR files.
Wisconsin
All employees have a right to review their HR files. (Wisconsin Statute 103.13)
Wyoming
No laws regarding employee rights to review HR files.
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation of work and career issues requires that you be aware of all possible information, including if possible what may be in your HR file. We strongly suggest you consider respectfully requesting that opportunity. As we often say, “More Data – Better Decision.”
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.
A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
Please Note: This Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.
A popular “Ultimate Package” of Form Memos and Checklists is
Our “Ultimate New Job Package”
Includes Master Checklist and 50 Good Reasons to Explain Your Departure. [click here.]
© 2010, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.