Only about one-third of states have a law that mandates an employee’s right to see what is in their employee file. For former employees, it is worse – only 12 states require companies to provide access to former employees. Thanks to the Freedom of Information Act (FIA) the federal government is required to provide its employees with their personal information. However, that is not the law in more than 30 states.
When you are employed by any company, they keep a record of all interactions regarding your employment with them. Additionally, this file may also contain information from supervisors or from other employees regarding issues with your employment. First, check your employment handbook and then check state law in your state to verify if your company must provide access to that file.
Your employee file will most likely contain all of the following:
- Job application and resume.
- High school diploma or college degree.
- Moderation agreements.
- Employment contracts.
- Non-compete or nondisclosure statements.
- Job descriptions.
- Promotion or demotion, or if you were passed over for promotion, anything used to determine non-eligibility for promotion that would not normally be in your file.
- Pay rates, benefits, or other compensation.
- Education and training certificates.
- Receipt for employee handbook or other forms used for employment policies.
These and many other forms needed during your ongoing employment or previous employment are kept in your file. However, if you are looking for a certain form that is not in your file, it may be in a more secure place.
Some documents are required to be kept separately due to the sensitive nature of the information, such as immigration and visa forms, medical and genetic information, and files that identify disability, race, sex, and veterans’ status. Almost every state requires companies to provide access to medical files and some require your employer to make copies for you.
Requesting a file review
Most human resource (HR) departments are aware of the Freedom of Information Act (FIA), but some files not required by state law to give you access. Many companies believe the information they kept on you was kept for their purposes and an employee does not have a right to it, particularly those who no longer work there. Yet, some states require the company to give you access to any files that you signed.
In states that require both current and former employees access to their records, a request can be made verbally or in writing. Whether the company is required to provide access or not, a polite request might get you what you need.
Requests for copies
Some states require employers to keep the file on premises for inspection, while other states require they be maintained at company headquarters. If they are kept at another location due to space limitation in the HR office, a request must be made to review the file. The employer has a specific amount of time to make the file available. These time limits vary from state to state. In some states, a company has 21 days from the date of the request to allow the file review.
If they cannot move the file due to company regulations, they must allow you to view the file at the location where it is housed, but sometimes that is company headquarters in another state. In that case, the employee may be required to make the trip on their own time, at their own expense. Only Michigan requires a company to make the file available on-site for the worker.
Some companies will make copies of anything you request from your file, while others will ask for payment to defray the HR personnel’s time, paper, and ink. Some states require employers to provide copies, such as the state of Maine, which stipulates that the employer must provide whatever copies an employee asks for from their file at company expense.
Information in your employee file you cannot see
Some documents cannot be made available for viewing regardless of state law. These documents include reports of misconduct where another individual was named, harassment cases where state law requires confidentiality of witnesses, as well as other legal cases. These documents are normally made available to attorneys during trial or discovery.
In states where employers are not required to give you a copy of your file, some may let you review it. However, some documents may have been removed due to the above. And, they will normally have someone from HR observe you while you view your records to ensure you do not remove or change anything.
Things you can see include:
- Employment application.
- Payroll authorization.
- Notices of recommendation, written warnings, disciplinary action, and/or termination.
- Layoff notices and vacation requests.
- Wage attachment or garnishment forms.
- Education and training certificates.
- Performance reviews.
- Attendance records.
Do I need a lawyer?
Generally, you can ask to see the file without legal intervention. However, if you have gone beyond the 21-day window in states that require it and you still have not seen the file, you may need legal counsel. A civil action can be taken against the employer in states where access is required by state law.
In states where employers are not required to provide access, a civil action may be required to retrieve anything from the file. You should consult an employment law expert when this is the case.
The best practice for all employees is to maintain an employee file of their own. When they are given a rating or training certificate, they should ask for a copy at that time. That way, they never have to worry about whether or not an employer will provide access to employment files.