The General Assembly just passed significant changes to the state’s personnel file statute. The law goes into effect on October 1, 2013.
Currently, employers are not required to maintain personnel files, but if they do, they must allow current and former employees access within a “reasonable time” after a written request is submitted. The General Assembly passed a revision that dramatically reduces this time period to seven days for current employees and ten days for former employees. The current or former employee also has a right to copy the file, while the previous law only allowed current employees to demand a copy.
Another significant change obligates employers to provide employees copies of documentation of any disciplinary action within one business day of issuance and immediately provide a copy of any documented notice of termination. The legislation does not address whether quasi-disciplinary documents, such as a critical note to the employee’s file or documentation of verbal coaching qualify.
This revision also, for the first time, forces employers to state on any disciplinary documentation, termination notice, or performance evaluation that the employee has the right to submit a written statement disagreeing with the contents of the document. While this right has long existed, the obligation to notify the employee is new. As in the past, any time the personnel file is disclosed to a third party, the employee’s statement must accompany it. We believe this right to notification is a first of its kind in the United States. Employers should update all disciplinary notice forms to include this notification of the right to rebut the discipline. This notice must be written in “clear and conspicuous language” – that means no legalese or fine print.
Violations of the personnel file statute are punishable by fines of up to $1,000. The proposed law changes the current mandatory fines into maximum fines (so lower fines are allowed). This is the only benefit for employers in the proposed law. Fortunately, employees still cannot sue for violations of these provisions.
It is important to remember that not every document an employer keeps in a personnel file is considered the “personnel file” under the law. Likewise, just because a document is kept in a different folder does not mean an employee does not have a right to see it. Subject to a few exceptions (such as medical records and reference letters), any documents pertaining to decisions about the individual employee’s hire, discipline, promotion, pay, etc. are part of the personnel file.
Brody and Associates regularly advises management on complying and remaining up to date with state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
