What personnel records can employees review?
Minnesota law requires employers to grant employees access to certain personnel records during and after employment. Whether or not each item is included in what the employer keeps as a “personnel file,” the law still requires that employees be allowed to access specific records.
In practice, it’s often a good idea to keep copies of these things in a single “personnel file.” That way, when an employee requests access, you don’t have to retrieve items from multiple locations and risk forgetting something that the employee is legally entitled to review. Fines for failing to provide access can be as high as $5,000.
The following tips can help you organize the right records and set up a process to respond to review requests. Keep in mind that other Minnesota laws and federal laws require you to retain other types of records, such as the hours worked by employees, and there may be separate requirements for how long you should retain those records or how much access employees should have.
The following items should go in the personnel file and be available for employee review:
- Application(s) for employment;
- Wage or salary history;
- Notices of commendation, warning, discipline, or termination;
- Authorization for pay deductions or withholding;
- Fringe benefit information;
- Leave/vacation records; and
- Information about employment history with the employer, including salary and compensation history, job titles, dates of promotions, transfers, and other changes, attendance records, performance evaluations, and retirement records.
The following items don’t need to go in the file and don’t need to be made available for employee review:
- Written references;
- Information relating to investigation of an employee’s (a) alleged lawbreaking, or (b) conduct for which the employer might be liable, unless and until:
- the investigation is completed and, in cases of an alleged criminal violation, the employer has received notice from the prosecutor that no action will be taken or all criminal proceedings and appeals have been exhausted; and
- the employer takes adverse personnel action based on the information contained in the investigation records;
- Education records, that are maintained by an educational institution and directly related to a student;
- Results of employer testing (BUT the employee may see cumulative total test scores for a section of the test or for the entire test);
- Information about the employer’s salary system and staff planning;
- Written comments or data of a personal nature about a third party, if disclosure of the information would be an intrusion on that third party’s privacy;
- Written comments or data kept by the employee’s supervisor or an executive, administrative, or professional employee, provided the items are kept in the sole possession of their author;
- Privileged information or information that is not discoverable in a workers’ compensation, grievance arbitration, administrative, judicial, or quasi-judicial proceeding;
- Coworkers’ statements about the employee’s job performance or job-related misconduct, if the statement implies the coworker’s identity; and
- Medical reports and records.
How much access does the employee have to the file?
At least once every 6 months, an employee’s written request for access must be honored. For in-state employees, access must be provided within 7 working days of the written request; it should be provided within 14 working days for out-of-state employees.
The employer can either provide a copy of the file or provide an opportunity for the employee to review it during normal business hours. The employer can also require that one of its designees be present during the review.
Can it be a digital file?
Yes. Nothing in the law requires that the personnel records be kept in hard copy.
What if the employee disputes something in the file?
The employee can request that part of their file be revised or removed. The employer need not comply, but it must allow the employee to submit a written statement (no more than 5 pages) explaining the employee’s position. The written statement should be retained with the disputed material and should be included if a copy of the disputed material is shared.
When should the file be opened and closed?
It is wise to start the file as soon as an employee is hired. This ensures that everything the employee is entitled to review is kept in a central location. Again, keep in mind that even if you don’t have a single file, the employee still has a legal right to access the records described above.
There’s no rule about closing the file. However, many of the items contained in the file—such as salary history—must be retained for various time periods under state labor laws or federal laws. Before you destroy or delete a personnel file, check that you’ve complied with all applicable state and federal laws about records retention.
Also, bear in mind that even if you no longer retain a “personnel file,” if you retain some or all of the contents in order to comply with other statutes, employees (and former employees) can request access to those items.
Can former employees review their files?
Yes, to the extent that the contents are still retained by the employer—but only once a year. The former employee must make a written request, and the employer can either permit in-person review or provide a copy.
Is there anything else I should know?
Not surprisingly, it’s illegal to retaliate against an employee for exercising any of their file-review rights. Employers with 20 or more employees must provide notice to new hires about the rights described above, including the prohibition on retaliation.