If you have employees, you may have heard that you should keep employee files, also called personnel files. You may know that there is a state law requiring employers to allow employees to view their own files. But, what exactly should you keep in them? What should you do with the files? What other responsibilities do you have with respect to these files? These 12 questions and answers provide an overview.
What should I put in employee files? Employees’ right to inspect includes documents which are used, or which have been used, to determine qualifications for employment, promotion, transfer, additional compensation, termination or other disciplinary action, and medical records. So, employee files should contain any document containing information that was used in support of a decision to hire, fire, discipline, transfer or promote (including a pay increase) an employee. This does not necessarily include documents that support company-wide changes, but only those that relate to that individual employee.
Keep in mind that there are records the law requires employers to keep (and others you may just wish to keep as a good business practice) that should not be in employee files. This includes time/payroll records, other than documents supporting wage increases (if there are any).
Do I have to allow my employees to see their files? Yes, according to Wisconsin law. Employees have a right by statute to view or obtain a copy of their employee file. However, what exactly they see can be limited. See number 11, below.
Does the right to view their file apply to current and former employees? Every current and former employee is entitled to view of obtain a copy of his or her employee file.
What is the difference between “employee file” and “personnel file”? Nothing. Different people use different words to describe the same thing. Many in the human resources industry may use “personnel” for many things employee-related. The Wisconsin statute that allows employees to view or obtain copies of files, however, calls them “employee files.”
Can an employee make the request by telephone? The employee can, but the employer does not have to honor it. The employer may insist that it be in writing. This can be by mail, e-mail, fax, or hand-delivery. Employers can also allow such requests to be made verbally, in person, but it is a good idea to have a paper trail of such requests.
May an employee view his or her file more than once? Yes, up to two times each calendar year.
Do I as the employer have a certain amount of time to provide the employee file? Yes, 7 “working days”, or business days. This excludes weekends and state-recognized holidays.
Can I charge the employee for the copies? Yes, as long as the charge is reasonable and does not exceed the actual cost of reproduction.
What if I do not provide the file within the required time period? As harmless as this may seem, there can be pretty harsh penalties for not complying. Either an employee, or the Dept. of Workforce Development, the agency that assists
with enforcing employment laws in Wisconsin, can bring an action against the employer who does not allow access to an employee file in order to force compliance with the statute. Penalties can also be issued against the employer of $10 to $100 for each violation. Finally, if an employer terminates or takes another adverse action against an employee because the employee made a request for their file under this law, the employer may be liable for retaliatory termination under fair employment laws.
What if I don’t keep employee files? This could be an entirely separate blog post. Keep this in mind: if you do not have documentation to back up your reasoning for disciplining, firing, promoting, demoting, or any other actions you have taken with respect to an employee, you may find yourself in a precarious position when that employee (or a different employee, claiming, for example, discriminatory treatment) asserts a claim under any number of laws that are designed to protect employees.
At the same time, these requirements do not require you to create documents you otherwise would not create in the ordinary course of business. It’s just that if you have a document that, say, documents a verbal warning given to an employee, you must place a copy of it in the employee’s file.
Is there anything from the employee file that I can hold back and not give to the employee?
The right of the employee to inspect (or have copies of) his or her personnel records does not apply to:
· Records relating to the investigation of possible criminal offenses committed by that employee;
· Letters of reference;
· Test documents, except that the employee may see a cumulative total test score;
· Staff management planning documents (i.e., projections);
· Information about a person other than the employee if disclosure would constitute an invasion of that other person’s privacy;
· Records relevant to any pending claim between the employer and the employee that may be discovered in a judicial proceeding.
What if the employee disagrees with something in his or her file? Do I have to allow the employee to do anything about it? Depending on what the disagreement is about, a simple correction to the file may be appropriate. If employer and employee cannot agree on a correction, the employee has the right to submit a written statement explaining the employee’s position, which the employer then must attach to the disputed portion of the personnel record. The employee’s statement must be included whenever that disputed portion of the personnel record is released to a third party as long as the disputed record is a part of the file.
Keep in mind that the above are very general statements regarding personnel files and are not intended to serve as legal advice. For a more thorough evaluation of your particular obligations, contact an experienced employment law attorney. (You can reach Jessica Kramer of Kramer, Elkins & Watt, LLC at (608) 709-7115 and https://kewlaw.com/.)