HR Tip of the Week

Posted on  |  Compliance

'Must I Allow Employees to Access Their Personnel File?' and Other FAQs

Personnel files can help employers organize and preserve documented employment decisions as well as meet requirements to comply with certain recordkeeping laws. For these and other reasons, you should maintain a personnel file for each employee. Here are answers to some frequently asked questions about personnel files.

Q: What should I keep in personnel files?

A: Generally, personnel files should include information related to:

  • Hiring and onboarding, such as an application, resume, interview notes, offer of employment, job title, job description, and emergency contact form
  • Promotion, demotion, transfer, layoff or termination
  • Status as exempt or non-exempt from overtime
  • Rates of pay and salary history
  • Training records
  • Employee handbook acknowledgments
  • Performance reviews
  • Any disciplinary actions taken against the employee

Note: Some states have specific requirements for what must be included in personnel files. Check your state law to ensure compliance.

Q: What doesn't belong in personnel files?

A: The following information should NOT be kept in personnel files:

  • Any information reflecting an employee's membership in a protected group, such as their voluntary self-identification of gender, ethnicity, or race, veteran's status or as an individual with a disability. These records should be kept in a separate confidential file.
  • Any document relating to an employee's health or medical condition, including doctor's notes and medical certification forms, drug test results, and accommodation and leave requests based on an employee's injury or disability. These records should be kept in a separate confidential file.
  • I-9 forms and supporting identity and work authorization documents. It's a best practice to store all I-9 forms together in one file, since they must be produced promptly following an official request.
  • Records concerning workplace investigations (written statements from all relevant parties, interview notes, final investigation report, etc.) should be kept in a separate workplace investigation file.

Q: An employee asked to review their personnel file. Am I required to grant them access?

A: Several states have enacted laws requiring employers to grant employees access to their own personnel file upon request, including:

personnel file


1 (Arizona) - Payroll records related to hours worked, wages earned, and paid sick leave
2 (Ohio) - Medical records and certain wage and hour records
3 (Vermont) - Records related to paid sick leave
4 (Virginia) - Effective July 1, 2019

If you're not subject to a specific requirement, you can decide whether or not you will grant employees access to their files. However, the practice must be applied consistently—that is, if you permit one employee to view their records, you must allow access under the same conditions for all employees who request review. It's a best practice to keep records of when employees request and access their files.

Q: A former employee contacted me to ask to see their personnel file. Am I required to allow them to see it?

A: Most states that entitle employees to access their personnel records give the same right to former employees.

Q: How do I provide access to personnel files? Do I have to make copies? Can I have a witness present?

A: State rules vary, but they typically require employers to provide employees an opportunity to inspect their personnel file and/or obtain copies upon request. Most states that grant employees a copy of their personnel files allow employers to charge for the cost of reproducing the records. At least three states—Maine, Minnesota, and Ohio (wage and hour records)—generally prohibit employers from charging employees for copies.

Some states expressly allow employers to have a witness present when employees inspect their personnel files. If there's no prohibition, it's a best practice to have a witness present. Employers should review their state law carefully and make sure they understand their rights and responsibilities.

Q: Do I have to notify an employee when I place negative information in their personnel file?

A: A few states require an employer to notify an employee whenever negative information is placed in their personnel file. For instance, Massachusetts requires employers to notify an employee within 10 days of adding any information that has been used, or may be used, to negatively affect the employee's qualification for employment, promotion, transfer, additional compensation, or the possibility that the employee will be subject to disciplinary action.

Q: How long do I need to retain personnel files after an employee separates from the company?

A: Various laws establish minimum retention periods for employee records and personnel files, some of which extend well beyond termination. EEOC regulations require that employers keep all personnel or employment records for one year, and if an employee is involuntarily terminated, the employer must retain the personnel records for one year from the date of termination. Additional federal record retention requirements are outlined below, but state and/or local requirements may vary.

Type of record

Minimum retention period

Hiring documents (including job descriptions, advertisements, applications, resumes, interview questions and notes, background and reference check materials)

1 year from the date the records were made (hires and non-hires). If a discrimination complaint is filed, records related to the case must be kept until the final disposition of the complaint or lawsuit.

Performance records (including records relating to promotion, discipline, demotion, layoff, or termination)

1 year from the date the records were made, or from the date of the personnel action involved, whichever is later. If a discrimination complaint is filed, records related to the case must be kept until the final disposition.

Accommodation requests (for pregnancy, disability, or religious practices)

1 year from the date of the decision, but employers may want to keep them for the duration of the employee's employment. If a discrimination complaint is filed, records related to the case must be kept until the final disposition.

Employee exposure records (toxic substances)

30 years

Employee medical records

Duration of employment plus 30 years

ERISA and benefits records (including summary plan descriptions, annual reports, notices of reportable events, and plan termination documents)

6 years

Family and medical leave records (including dates of leave, medical certifications, employer-provided notices, and premium payments)

3 years

Form I-9 (Employment Eligibility Verification Form)

3 years after employment begins or 1 year beyond termination, whichever is later

OSHA logs (including incident reports and annual summaries: Forms 300, 300A, and 301)

5 years following the year to which they relate

Payroll and tax records (including employee name, occupation, address, social security number, wage rate, number of hours worked daily and weekly, gross wages, deductions, allowances claimed, net wages, overtime, date of each payment, federal income tax and FICA withheld, Form W-4, etc.)

4 years (for records required for tax purposes). Otherwise, 3 years.

Q: What should I do with personnel files once I'm no longer required to retain them?

A: Generally at the end of the retention period, employers should dispose of employee records so that they can't be read or reconstructed. This may include burning or shredding the records; ensuring the destruction or removal of electronic media containing the employee information; or contracting with a reputable third party vendor to properly dispose of the records in compliance with all applicable regulations.

Conclusion:

Make sure you have adequate policies, procedures, and training in place to comply with the federal, state, and local rules governing recordkeeping and personnel files.

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