Who Has a Right to View Personnel Files?

Employees usually have the right to see at least some portion of their own personnel records.

Generally, you should treat personnel files as private records belonging to you and your individual employees. You don't want to allow just anyone in the company to rummage through the performance evaluations, salaries, and job applications of coworkers.

But there are employees who have a legitimate need to view the information in a personnel file. For example, a supervisor may need to review performance evaluations to decide whether to promote an employee, or the human resources manager may need to review an employee's salary information to decide what to pay a new hire in the same position. And, in most states, employees have the right to inspect their own personnel files.

Keeping Files Confidential

Treat personnel files like any other private company records. You can do this by keeping employee files in a locked cabinet. Make them available only to those people in your company who have a legitimate business need to access the files. For example, you might establish a policy that only the human resources manager, the individual employee's manager, and the employee have a right to see an employee's file. This will protect your employees' privacy and limit opportunities for inappropriate documents to find their way into the files.

Keeping Medical Records Separate

Special guidelines apply to medical information pertaining to your employees. The Americans With Disabilities Act (ADA) imposes very strict rules for handling information obtained through post-offer medical examinations and inquiries. Employers who are covered by the ADA must keep these medical records confidential and separate from other personnel records. This information may be revealed only to safety and first aid workers, if necessary to treat the employee or provide for evactuation procedures; to the employee's supervisor, if the employee's disability requires restricted duties or a reasonable accommodation; to government officials as required by law; and to insurance companies that require a medical exam.

The Health Insurance Portability and Accountability Act (HIPAA) also imposes privacy obligations on many employers who provide group health plans. (Employers who administer their own plans and have fewer than 50 participants don't have to comply with HIPAA's privacy rules, and employers that sponsor plans that receive only enrollment information have minimal obligations.) Under HIPAA, employers are required to protect the privacy of employees' personal health-related information by designating an in-house privacy official, adopting policies and procedures to keep this information private, and notifying employees of their privacy rights, among other things. For more information on HIPAA's privacy rules, go to the HIPAA website established by the federal Department of Health and Human Services, at www.hhs.gov/ocr/hipaa.

Some state laws also provide special protections for employee medical records. These laws may limit the way such records can be used or the people who can view them.

Employees' Rights to Inspect Personnel Files

Many states have laws giving current employees -- and former employees -- access to their own personnel files. The extent of access provided varies from state to state. Typically, if your state allows employees to see their files, you can insist that you or another supervisor be present to make sure nothing is taken, added, or changed. Some state laws allow employees to obtain copies of items in their files, but not necessarily all items. For example, a law may limit the employee's access to only copies of documents that he or she has signed, such as a job application. If an employee is entitled to a copy of an item in the file, or if you're inclined to let the employee have a copy of any document in the file, you -- rather than the employee -- should make the copy. To find out about your state's law, contact your state's labor department.

Usually, you won't have to let the employee see sensitive items such as information assembled for a criminal investigation, reference letters, and information that might violate the privacy of other people. In a few states, employees may insert rebuttals of information in their personnel files with which they disagree.

Even if your state does not expressly allow employees to inspect their personnel files, you might consider making it your policy, or at least informing your employees of documents you are putting their files. If you are planning to take action against an employee based on material in the personnel file -- a complaint or documented performance problems, for example -- let the employee know. That way, the employee will have a chance to explain or discuss the problem and an opportunity to improve. An employee who finds negative information in a file only after being fired is likely to believe, rightly or wrongly, that those documents were created after the fact.