February 11, 2013

Surprise! Guess who owns your personnel file?

Filed under: Heads up, Q&A, Readers' Forum, Stuff I worry about

In the February 12, 2013 Ask The Headhunter Newsletter, a frustrated reader loses her job, then asks for her personnel file. And the results might shock you:

I was asked to leave my job (not a good fit for the position) last fall. I requested a copy of my personnel file from my employer. I finally heard back and they are telling me that I need to travel to the company’s headquarters in another state to view it. It’s almost a 1,000-mile trip! They will not make copies. Do I have any recourse? Thank you.

Nick’s Reply

My view on personnel files is that, if it’s information compiled about you by your employer, you should have a right to see it. But my view isn’t the law. In fact, I never pretend to give legal advice since I’m not a lawyer, and I don’t want my ire to lead anyone into legal jeopardy.

personnel-fileBut this is such a good question that I turned to my friend Lawrence Barty for his comments. Get ready for some shocks.

Larry is a retired attorney who specializes in employment and labor law, and particularly in employment contracts. Please note: Nothing in this column is legal advice for a particular situation, and laws vary depending on your jurisdiction. If you need legal help on a specific matter, consult with an attorney who knows the law in your state. Take it away, Larry…


Larry Barty: To start with, most employees suffer from a misconception: That is, they assume that their employee file somehow belongs to them. If fact, it does not. It is the employer’s file concerning the employee. To better understand that, assume a company maintains a file of correspondence and records concerning one of its customers. Why should the customer have the right to see what is in that file? So, with respect to employment files, the key fact is that the file is the employer’s, not the employee’s. So, the question properly phrased is, under what circumstances, if any, may an employee view that particular employer-owned file?

The answer to the question is that the employee may see that file without the employer’s permission only if a State law so provides. Without a State law giving the employee a right to see the file, the employee is at the mercy of the employer. Only about a third of the States have any laws concerning the right to view or copy employment files. (Employee medical files, as opposed to employment files, are often made available by State law). In the remaining two-thirds of States, the employee’s only “right” is whatever may be set forth in the employer’s rules or handbook.

In those States that do have laws permitting employees to see their files, the conditions vary widely. For example, California law provides that an employee may view any personnel record relating to performance at reasonable intervals, but only on the employee’s own time. The employee may copy records, but only those records that bear the employee’s signature. In Illinois, by contrast, an employee may view the entire file and copy anything in it.

In California, Pennsylvania and most other States that authorize employee viewing, if the records are kept off-site the employee must go on his or her own to that off-site location. Only a few States, such as Michigan, require the employer to provide a copy for viewing at the employee’s work site.

As for getting a copy of the file, a few States, such as Maine, require the employer to give the employee a copy of the file at the employer’s cost. However, most States that authorize viewing require the employee to pay reasonable copying costs.


Former employees are almost out of luck

Now for the punch line to these laws. What Larry has discussed so far pertains to access of personnel files by current employees. Once you’ve left the company, things change. Larry explains:

“Former employees’ rights to see employee files are even more limited. Less than a dozen States permit former employees to view personnel files at all and, in most of those States, the right to view is limited to sometimes as little as only within 60 days after employment ends. If a former employee wants a copy of his or her file after that, a lawsuit would be required.”

So the news is not good for ex-employees. As you might expect, the law makes access to your former personnel records complicated — mainly because they’re not your personnel records, but also because the law varies depending on where you live and work.

How to protect yourself

my-documentsBut this wouldn’t be Ask The Headhunter if we didn’t close with some useful advice that you’re probably not going to find anywhere else. Larry hands you a wonderful tip about how to get and keep the information you need:

“The bottom line for all employees is that you should keep your own file. Keep copies of annual evaluations, notification of wage increases, letters or e-mail complimenting or praising your work and, perhaps most importantly, disciplinary notices. If you know that a document concerning you has been generated that might be important someday, ask for a a copy. I think that most managers will give you one.”

Thanks to Larry Barty for sharing his knowledge about personnel files. Please don’t construe anything he says as advice for your personal situation; it’s not. Consult an attorney if you need specific legal guidance.

Was this a surprising education? Have you ever run into problems accessing your personnel file? Or, have you turned up surprises that caused trouble? Think you’ll need your personnel file after you leave your employer? Please chime in on how employers keep you on file… and how you can keep your files!

: :

12 Comments on “Surprise! Guess who owns your personnel file?”
By Dave
February 12, 2013 at 9:57 am

“The bottom line for all employees is that you should keep your own file.”

This is what you should be doing in case there is any questions.

By Matt F
February 12, 2013 at 11:47 am

On the topic of employment information, I wonder if you’ve seen this development and where it will figure in your advice regarding compensation:

http://redtape.nbcnews.com/_news/2013/01/30/16762661-exclusive-your-employer-may-share-your-salary-and-equifax-might-sell-that-data

By Nick Corcodilos
February 12, 2013 at 12:45 pm

@Matt: I saw this article recently. Thanks for posting the link. Read it carefully. Although the title is designed to be sensational and to imply that your salary information is available and can be purchased; and although the CEO of Equifax said as much in a presentation, which he later disavowed; a careful reading of the article reveals that salary information is revealed only with a person’s permission.

Now, I don’t trust these clowns at all. But the article doesn’t say salary information is sold to anyone that wants it – or to anyone at all – without a person’s explicit permission.

Where things get fuzzy is with credit applications, which require you to approve sharing of information. But even then, it’s not clear that salary info is included.

It’ll be interesting to see where this goes. But based on this article, I don’t think anyone could get your salary info.

Bigger question: Why are employers providing ANY such information about their employees to these clearinghouses? There’s the culprit. The clearinghouses are just profiting from HR stupidity.

By marybeth
February 12, 2013 at 2:30 pm

@Larry via Nick: excellent advice. You as an employee SHOULD keep a copy for your own records whether you are a stellar employee at the top of the food chain, an employee about to be let go, or anywhere in between. You never know when things may change–your boss (who likes you and gives you good reviews) could get fired and be replaced by the boss from hell, who hates you and decides to get rid of you.

Yeah, Nick, I agree with with you re wondering why employers are providing ANY such information about employees to these clearinghouses. I can’t come up with a single reason, much less a good reason. But I can’t come up with a reason why employers want to know your salary history on applications, resumes, and in interviews. Why? Surely there is a budget for the position, and they know what the job is worth in a ball park kind of way (paying less for someone with less experience, more for someone with more experience) and taking into account location (same job in NYC will pay more than same job in Podunk, Mississippi). Does it mean that employers are so stupid or lazy that they only base making a salary offer on a candidate’s PREVIOUS salary?

None of this makes any sense, and I am really starting to think that stupidity is what is rewarded.

By Your “Right” to Your Personnel File Records « asuccessfulcareer
February 12, 2013 at 2:39 pm

[…] his blog post, Surprise: Guess who owns your personnel file, Corcodillos mentions that he consulted an attorney he knows, Lawrence Barty. Barty offered some […]

By Nick Corcodilos
February 12, 2013 at 3:05 pm

@marybeth: The article I referenced actually suggests why companies outsource their employee data. It’s to create an arm’s length of plausible deniability in case they get sued.

That’s the “strategic value” the HR department brings to a company. “We make sure we lower our company’s chances of getting sued. Score one for HR.”

Gimme a break. I think the article’s right on that point. But if that’s the best HR can muster, HR oughta be fired.

By Matt F
February 12, 2013 at 3:49 pm

@Nick – better yet, it looks like these guys are joining forces with payroll giant ADP: http://investor.talx.com/phoenix.zhtml?c=74399&p=irol-newsArticle&ID=898835&highlight=

As MaryBeth asks, employers wouldn’t have to feed this data to Talx/Experian for little/no return. They could get a comprehensive background check from ADP’s legacy SecureHire product coupled with salary history from Talx. So much for what little edge the average working stiff has at the bargaining table.

By Dave
February 12, 2013 at 4:52 pm

@marybeth

“Does it mean that employers are so stupid or lazy that they only base making a salary offer on a candidate’s PREVIOUS salary?”

Yes.

By Nic
February 13, 2013 at 6:53 am

I foresee HR itself soon being “outsourced” so the old adage will prove true, what goes around comes around.

By marybeth
February 15, 2013 at 2:44 pm

@Nick: yes, I noticed that (re the thinking that outsourcing will provide immunity from lawsuits), but I wonder if this is really true, or if there simply hasn’t been a seminal case on this yet. After all, when HR hires someone to do this, with the end result being that the data is provided to HR, the data ends up in the same place, used by the same folks. The only difference is that there is a middleman in the getting of said data. And if I were that middleman, I’d be telling my attorney that even though a job candidate is suing me, I was an agent of the employer who hired me to do the work. I’m not an expert in employment law, so I don’t even know if that argument would fly, but I’d sure give it a try.

Another point: if employers are wailing that there’s such a talent shortage, yet they can’t find a single possible candidate, even when they get over 25,000 engineers applying for a job and there is still massive unemployment and underemployment, it cannot be that bad. If it were, employers would stop whining and do something different (remove HR and software from the process?). It must be working for them or at least be sufficient. Only when matters become impossible (as in impossible to function unless someone is hired) or the company is losing money will they change. Or are they simply too stupid to change?

@Nic: now wouldn’t that be justice served? I only hope it doesn’t take 30 years for this to happen…!

By Dave
February 15, 2013 at 4:12 pm

@marybeth

“It must be working for them or at least be sufficient. Only when matters become impossible (as in impossible to function unless someone is hired) or the company is losing money will they change.”

I’ve seen people insist that they must have someone with X, Y and Z. Takes them a year to find them. My guess is that there is not enough pain for them to act. I find that the calculus that the use to determine that the need a “senior level person” highly flawed. There are ways to bring people in, train them and lessen the chance that they won’t leave.

By Michelle
February 22, 2013 at 10:40 am

In addition to a file, you should also keep a journal. I would suggest this journal not be something kept on the computer you use at work. Maintain a paper notebook and take it home at the end of the day. Not on your desk. Enter any issues that you feel important – remember, your defense against unwarranted accusations may be the journal you keep. If you can catalog verbal abuse, inconsistencies in “stories”, and provide solid backup should the need arise, It may be your saving grace should you find yourself out of a job and looking for unemployment.

Post a comment