2013 Legislation: Changing Rules Regarding Personnel Files Access and Documentation

New law specifies time frame for providing employees access to records

Starting October 1, 2013, employers will have new obligations when responding to a current or former employee’s request to review personnel file documents or for copies of information related to job performance, discipline, and discharges.

In the past, employers have had to let employees inspect their personnel files within a “reasonable time” after receiving a written request. The inspection could take place during regular business hours at or reasonably near the employee’s place of work.

As of October 1, 2013, the revised law will require employers to provide this access and, if requested, allow the files to be copied, within seven business days for current employees and 10 business days for former employees.

If an employer and former employee cannot agree on a location for the former employee to inspect the files, the law will allow the employer to mail a copy of the file to the former employee within 10 days of receiving the written request for the file. Former employees must request their files within one year of their termination from the employer. Unchanged by this legislation, the law continues to require that employers keep a former employee’s records for at least one year after the date of termination. Also unchanged is a provision that permits an employer to charge a current or former employee a fee for copying personnel records. The amount must be reasonably related to the cost of supplying the requested documents and may include the cost of the staff time to prepare the copies in addition to just the cost for paper, supplies, etc.

Under a new requirement, employers will have to provide an employee with a copy of any documentation of any disciplinary action imposed on that employee within one business day, and immediately provide an employee with a copy of any documented notice of the employee’s termination from employment.

The new law also stipulates that whenever an employer documents an employee’s disciplinary action, termination notice, or performance evaluation, employers will be required to include a statement in clear and conspicuous language that the employee can submit a statement disagreeing with anything in the disciplinary action, termination notice, or performance evaluation. The employer must keep the employee’s statement in the personnel file and include it whenever the file is transmitted or disclosed to a third party. Employees previously had this right under the law, the notice of the right is the new mandate.

Finally, the law changes the penalty structure for a violation of the law from a mandatory assessment of up to $500/$1,000 for first/subsequent violations, to a discretionary assessment, based on the Labor Commissioner’s consideration of what is necessary to insure compliance, the character and degree of the impact of the violation, and prior history of violations.

Read Public Act 13-176 here.