Many workers are concerned about the contents of their personnel file or employee file. Some believe that all the information about their employment is conveniently gathered together in one manila folder — the workday equivalent of the permanent record from high school. In fact, the first question many new clients ask is whether I can obtain a copy of their personnel file.
The reality is often a letdown. While some employers do have complete, accurate, and well-organized personnel files, the majority do not. Some keep no personnel files whatsoever. Others only keep disciplinary documents and writeups in the personnel file. Many have no consistent policy at all, and put new documents into the file only when it occurs to them. In Louisiana, there are few laws regarding personnel files, meaning it is almost entirely up to the employer regarding what records to keep and who is allowed to see them.
What Documents Must Be Kept In A Personnel File?
Many employees are surprised to hear that there is no law requiring an employer to keep a “personnel file” at all. There are certain record-keeping laws that apply to employers, but there is no law requiring that all of a particular employee’s documents be kept in the same place. For example, Part 516 of the Fair Labor Standards Act regulations requires employers to keep certain records about employee wages and hours worked. However, it does not require that those records be kept in any “particular order or form.” The records may be electronic, rather than in hard copy, and they may be sorted by date or facility rather than by individual worker. Similarly, the OSH Act requires employers to keep records of safety incidents, MSDS sheets for potentially dangerous materials, and other relevant information regarding employee safety and health. But it does not require that information to be organized on an employee-by-employee basis. So while both acts require companies to keep employment-related records, neither requires anything like a traditional “personnel file.”
In short, a Louisiana employer may decide whether or not it wishes to keep personnel files, and what documents it wishes to keep in them. It is almost certainly a best practice for employers to keep careful and complete written records regarding their employees, but best practices are not always the law. As one Louisiana court noted, it is the “employer’s right to determine the contents and the elimination of the contents of those [personnel] files” and the “employer’s purview to decide when to remove stale or unnecessary documentation from employee records.”
What Documents May Not Be Kept In A Personnel File?
The law does state that certain types of documents may not be kept in a personnel file. The Health Insurance Portability and Accountability Act and the Americans With Disabilities Act — better known as HIPAA and the ADA — require that a medical and medical insurance records must be kept confidential and segregated from other records. If an employer possesses medical records for any reason, such as a certification for an FMLA leave request, it must keep a separate file holding only those medical records, and it must take steps to ensure that the medical records are kept confidential. Disclosing these records to co-workers may be a violation of the employee’s ADA or FMLA right to privacy. (Of course, all personnel records should be kept confidential, but employers must take extra care with respect to medical records).
Do I Have A Right To View My Personnel File?
In Louisiana, an employee does not have the right to view his or personnel file unless an employee handbook specifically grants that right. Many other states have laws allowing employees to review their personnel files, although these laws are often subject to limitations. For instance, California requires the request to be in writing, Colorado limits the employee to one viewing per year, and Connecticut allows employees to include a written “rebuttal” if they disagree with anything in the file. Louisiana, however, has no such laws. An employer may allow its employees to view their personnel files, or it may forbid it. The only requirement is that an employer act consistently. Allowing one employee to view his or her file, while denying it to another, may be evidence of a discriminatory or retaliatory motive.
Employees do not even have a right to view documents which they have signed, such as employment contracts, non-competition agreements, and arbitration agreements. For this reason, employees should refuse to sign any documents unless the employer gives them a copy on the spot. It is critical to have copies of any documents or agreements you have signed, and if you do not ask for a copy up front, you are not likely to get one later.
The only reliable way for an employee to obtain his or her personnel file is by filing a lawsuit. If an employee sues on the basis of unlawful discrimination, retaliation, or unpaid wages, the attorney may demand production all records related to that individual’s employment. This will include the personnel file, if one exists. However, no attorney will file a lawsuit solely for the purpose of obtaining a copy of the personnel file.
If you have any questions about the laws surrounding personnel files or record-keeping, call me at (504) 267-0777 or email me here. The initial consultation is always free, and our call is confidential and privileged.