Most of us know that our employer is keeping a personnel file on us, but few workers question what is being collected or ask to see their file. So, what are employees entitled to see? And what must employers do when collecting employees’ information or when faced with a request to examine a personnel file?
Employers commonly keep employment-related documents on individual employees in personnel files. These documents may include onboarding paperwork, employment contracts, attendance records, performance evaluations, performance improvement plans, disciplinary history, and position changes within the company, such as promotions, layoffs, or terminations.
Advanced data collection technology and information systems have enabled employers in today’s workplace to easily collect information through job applications, interviews, onboarding, and training. Most employees accept such information-gathering as a prerequisite to securing employment; however, many seldom pause to question what information their employers obtain and maintain about them once they begin working.
Are There Federal Laws Regarding Personnel Files?
Several federal laws require employers to keep certain kinds of employee information separate from personnel files. For example, the Americans with Disabilities Act (ADA) requires that employee medical records be maintained in separate medical files. 42 U.S.C. § 12112(d)(3)(B). And although it is up to the discretion of the employer, companies are strongly encouraged to keep employees’ legal documents, such as litigation or arbitration proceedings, separate from personnel files. Employers who do keep arbitration, litigation, grievance, or administrative agency documents in personnel files risk giving the appearance, in the event of a future adverse employment action, that such information impermissibly colored that action.
Besides such federal laws, and unless a state’s law limits what type of documents employers may keep in personnel files, employers have broad discretion over the contents of personnel files. And given the vast array of information that could be in a personnel file, it is natural that employees might want access to their company’s documentation. Yet no federal law grants private sector employees any right to access their personnel files. Employees who wish to inspect their personnel files are subject to the rights granted by their respective states’ laws, if any.
Illinois Personnel Record Review Act of 1974
The Illinois Personnel Record Review Act of 1974 (“the Act” or the “PRRA”) governs public and private sector employee personnel files. It applies to current employees and former employees whose employment has ended with the year prior. Employers covered under the PRRA include any business, commercial, or legal entity with five or more employees that are not members of the employer’s immediate family. Additionally, the Act encompasses any third parties that have contractually agreed to handle personnel records for an employer.
Prior to passage of the PRRA, employees could only access their personnel records through discovery in a legal dispute or “by the kindness of [their] employer.” Landwer v. Scitex Am. Corp., 238 Ill. App. 3d 403, 407 (1st Dist. 1992). But Illinois courts have now determined that it is the State’s public policy to permit employees to access their personnel records. The court in Landwer held that the Act was “enacted to remedy the imbalance of power between employer and employee.”
Demand letters used in employment litigation in Illinois frequently reference the PRRA to request that an employer produce personnel records relevant to a dispute or preceding a lawsuit. Under the Act, an employer who fails to include a document in an employee’s personnel file required under the Act cannot use that document in any subsequent legal proceeding. However, the employee whose personnel file should have included the document may use such material upon request.
What Records Can Employees Request?
The PRRA permits employees to request personnel records related to the employee’s qualifications for employment, promotion, transfer, additional compensation, discharge, or other disciplinary action. However, employees are not entitled to view certain records, including information of a personal nature about another person, if disclosure would clearly violate that person’s privacy. Further, employees do not have a right to view reference letters, any portion of a test document, materials relating to the employer’s staff planning (unless these were used to determine something like the employee’s hiring, promotion, compensation, or discipline), and records related to a pending claim between the employer and employee that could be produced during a legal proceeding.
Additionally, employers should note that they are prohibited from collecting records of an employee’s associations, political activities, publications, communications, or non-employment activities, unless the employee consents, in writing, for their employer to collect such information or submits the information themselves.
How Do Employees Make Access Requests?
Employees can simply ask to view their personnel file. Employers may, at their discretion, require that employees submit requests in writing. Employees who make an access request to their personnel files must wait a reasonable amount of time before making another access request under the Act. Employees who belong to unions and who have current grievances against their employers may designate a representative to inspect their personnel files on their behalf.
What Must Employers Do in Response to Access Requests?
Employers have various obligations under the Act. One is that they must grant at least 2 requests to inspect a personnel file per calendar year, for both current and former employees. Employers must respond to access requests within 7 working days. If they can reasonably show they cannot comply within the deadline, they will have an additional 7 days. Inspections of personnel files must occur during normal working hours at a location reasonably near the employee’s place of employment. However, employers may allow a different location or time based on convenience for the employee.
The PRRA has tried to strike a balance between employee and employer rights. Employees are able to inspect their personnel files and to request copies. Employers, on the other hand, must be careful about what information they collect and must be responsive to employees’ request to view their records. If adequately followed, the PRRA both protects employees’ privacy and can reduce employer liability.