Responding to Requests for Personnel Documents
By: MARY M. KRAKOW
Employers typically receive three types of requests for personnel documents: 1. a request from a current or former employee for a copy of his or her personnel file; 2. a subpoena demanding production of specified documents for a current or former employee; or 3. a letter from an attorney requesting documents for a current or former employee. Employers should know and follow the applicable legal requirements and good business practices when responding to these requests.
1. CURRENT OR FORMER EMPLOYEE
Minnesota law (Minn. Stat. § 181.960-.966) sets forth the rules employers must follow when responding to a current or former employee's request to review a personnel file. By law, an employer must allow each current employee to review his or her "personnel record" once every six months and each former employee to do so once during the year after the employment relationship ends. While employees often make the request orally, an employer should require it in writing, both because the statute governs "written requests" and to ensure documentation for each step of the process.
Employers must carefully determine which documents to provide in response to an employee's request. Even though employees generally will use the term "personnel file," in many cases just giving a copy of what the employer calls the "personnel file" may not meet the employer's legal requirements. The employer must gather all of the documents that meet the statute's definition of "personnel record," regardless of where they are actually kept. Meanwhile, other documents actually kept in the file may not be considered "personnel records" and need not be provided to the employee.
According to the statute, the employer must provide:
- Any application for employment
- Wage or salary history
- Notices of commendation, warning, discipline or termination
- Authorization for a deduction or withholding of pay
- Fringe benefit information
- Leave records
- Salary and compensation history
- Job title
- Date of promotions, transfers and other changes
- Attendance records
- Performance evaluations
- Retirement record
- The cumulative total score for a section of any employer test or the entire test
- Information relating to the investigation of a potential violation by the employee of a criminal or civil statute or of the employee's conduct where the employer could be held liable (e.g., alleged sexual harassment) if the investigation has been completed and the employer has taken adverse action against the employee based on the information in the investigation records
Documents the employer is not legally required to provide include:
- Letters of reference
- Information relating to an ongoing investigation of a potential violation by the employee of a criminal or civil statute if the investigation is not yet completed or the employer has taken no adverse action against the employee
- Certain education records
- Individual results of employer testing
- Information relating to the employer's salary system and staff planning
- Written comments or data of a personal nature about someone other than the employee if disclosure of the information would intrude upon the other person's privacy
- Written comments or data about the employee if written by, and kept in the sole possession of, the employee's supervisor or an executive, administrative, or professional employee
- Privileged information
- Information that is not discoverable in a workers' compensation, grievance arbitration, administrative, judicial, or quasi-judicial proceeding
- Any portion of a co-worker's written or transcribed statement that is about the job performance or job-related misconduct of the employee and discloses the identity of the co-worker by name, inference or otherwise
- Medical reports and records that by law are available to the employee from a health care services provider
Time Line for Compliance
An employer must comply with an employee's request within seven working days if the personnel record is located within Minnesota, or within 14 working days if the record is located elsewhere. For current employees, the employer may choose to give a full copy of the record upon request. Alternatively, the employer may require the employee to first review the record during regular business hours at the work site or another reasonably nearby location with an employer's representative present. After the review and with a further written request from the employee, the employer must provide a copy of the record to the employee. For former employees, the employer must provide a copy of the record without first requiring the employee to review it.
Employers cannot charge a fee for the copy. Also, for those employers with 20 or more employees, if an employee disputes specific information in the record, the employer and employee may agree to remove the disputed information. If an agreement is not reached, the employee must be allowed to submit up to a five-page written statement explaining his or her position; the employer must include this statement in the personnel record and provide it along with the rest of the record in response to any future requests. Employers cannot retaliate against employees for asserting their statutory rights.
If an employer omits required information when responding to a request, that information may be excluded from any subsequent legal proceeding. In that instance, the employer could only use the information if it shows it did not omit it intentionally and gives the employee a reasonable opportunity to review it prior to use.
Employees may enforce their statutory rights through civil action and may obtain actual monetary damages and, if retaliation has occurred, make-whole relief such as reinstatement, back pay, and attorney's fees. Additionally, the Minnesota Department of Labor may seek a $5,000 fine for each employer violation.
The Employer's Written Response
As a good business practice, the employer should include a short cover letter when providing a personnel record and make its own copy of all the documents it provides. The letter should state the date the employer received the employee's request and that the employer is providing the documents in accordance with Minn. Stat. § 181.960-.966. This will help establish the employer's compliance with the statute.
Employers occasionally receive a subpoena demanding specified personnel documents. The employer must comply with a valid subpoena within the stated time period unless the employer obtains a court order to quash the subpoena. Failure to comply with a subpoena could result in an order of contempt against the employer, monetary fines, and other penalties.
3. ATTORNEY'S LETTER
Occasionally, employers receive a letter from an attorney requesting a current or former employee's personnel documents. An authorization signed by the current or former employee generally accompanies the request for personnel documents. Typically, the attorney represents the employee or the opposing side in a legal matter that does not involve the employer.
The employer should first confirm that the request does not fall under Minn. Stat. § 181.960-.966. If the request is for a current employee or one whose employment ended within the previous year, the employer may need to treat it as a statutory request even if the letter does not identify the statute. The employer also must make certain that the legal claim underlying the request does not involve the employer.
The employee's signed authorization should include a "release of claims" against the employer for providing the requested documents. If an attorney's request does not include a subpoena and does not qualify under Minn. Stat. § 181.960-.966, the employer may choose whether to comply with it.
Employers with questions regarding any request for personnel documents should consult their legal counsel.