Joe thinks there’s something critical in his personnel file, something keeping him from getting promotions he’s sought. Joe wants to know whether he can demand to see what’s in there.
For most workers in most states, the answer is no. Joe has no right of access to his personnel files.
Public-sector employees in general have some access rights related to their contracts. A few states have specified rights for private-sector workers. But for most workers, including those in Missouri and Kansas, employers don’t have to open personnel records for employee review.
But that doesn’t mean they shouldn’t.
Employment law attorney Eric Packel usually advises his employer clients that it might be in the organization’s best interests to let a fearful or curious employee see what’s in the file.
Of course, the Kansas City attorney at Polsinelli says, that file should be kept judiciously. That means no scrawled notes with opinions or comments that aren’t based on fact.
For example, he says, a file shouldn’t contain a note that says, “Joe isn’t trustworthy.” Rather, it should hold factual notes about specific instances when Joe said he was going to do something but didn’t come through. Joe’s file should hold his formal evaluations, including employee rebuttals, but nothing in it should be a surprise to Joe.
Ideally, formal job evaluations are accompanied by sit-down discussions with employees so they know the reasons for their assessments and can hear — or be reminded of — things they need to do for improvement.
Lawyers also remind employers to always keep any employee health or medical information completely separate from performance-related files.
Joe shared the fear that negative comments in his file could be shared with prospective employers. Joe probably can relax. In the modern work world, especially if employers are counseled by employment law attorneys or human resource experts, most employers give out only minuscule information if called by prospective hirers.
“Sophisticated” employers, Packel says, give out name, dates of employment, job title and maybe salary level, but precious little beyond that, largely because of fear of litigation. Whether or not that happens — and it rarely does — employers don’t want a disgruntled employee to sue them, charging that they gave out negative information that hurt future employment chances.
Packel also says it’s increasingly rare for employers to hint as to whether the employee is “eligible for rehire” — a code phrase for indicating whether the employee left on good terms or was fired “for cause.”
In the real world, of course, many best-practice rules are broken. Some employers put indefensible comments in files. Some won’t allow employee access. Generally, though, employees shouldn’t lose sleep over their files. Both parties should come to understandings over a cup of coffee, not a piece of paper.