Compliance – is a former employee entitled to a copy of his or her personnel file?

I am surprised by the number of times this question comes up.  Here’s how it arises.

John worked in your marketing department for six years.  He was terminated for falsifying expense reports in early 2011.  The departure is filled with the typical denials but, in the end, John is gone and life in marketing is good.

Three months later, however, you receive a letter from John’s lawyer asking for a copy of John’s personnel file.  The desire to copy and send the whole thing (to prove your good faith and due diligence in the termination) is strong and even sometimes entirely warranted.  But before you switch on the copy machine, you should know whether your state requires you to provide a copy of the entire file, some of the file or none of the file to former employees.  In short, while the decision to send a copy of the entire file may be a good one, it should be an informed decision and never simply your default response.

It appears that a former employee has no statutory right to examine his or her personnel file in the following states:  Alaska, Arkansas, Washington D.C., Idaho, Kansas, Louisiana, Missouri, Montana, Nebraska, New Mexico, New York, North Carolina, North Dakota, South Dakota, Tennessee, Texas, Vermont, Virginia and Wyoming.

It appears that, under specified circumstances only, a former employee may have a statutory right to examine his or her personnel file in the following states:  Delaware allows access to employees who are laid off with re-employment rights and New Jersey allows access to employees who may have been exposed to toxic chemicals in the workplace.  Florida, Kentucky, Maryland and North Carolina allow access to former public or state employees.

It appears that a former employee probably has the same rights as current employees in the remainder of the states.

Remember, just because you have to allow access to the file does not mean that you have to send a copy of the entire file to the former employee.  Many states limit the employer’s obligation to provide copies of documents to those that were signed by the employee or those that were used to make an adverse employment decision.

In making a decision as to whether to allow access and, if so, which documents the former employee (or his attorney) can see or copy, you should check with your attorney.  In fact, it’s a good idea to check with counsel before taking action based on anything you read on the Internet.   This article is for informational purposes only and is not intended to provide legal advice.  Remember, nothing takes the place of advice from an attorney who knows you and your business.

By Mary Wright

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