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Are Employees Entitled To Their Personnel File?

by John V. Berry May 19, 2014 at 3:15 pm 1,127 1 Comment

 Berry&BerryRevised

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write biweekly on RestonNow.

Many current and former employees often ask whether they have the right to obtain a copy of their personnel file or have the ability to review and inspect it at the very least. It is important to understand that each state has its own laws and regulations concerning personnel files of private sector employees. In addition, public sector (federal, state and county) employees are governed by different state and federal laws.

Access to Personnel Files Varies

Private sector employees are generally not entitled to a copy of their personnel file. Virginia, the District of Columbia, and Maryland currently do not have statutes that require private sector employers to provide a copy of or even the ability to review employee personnel files. Some states, such as California and Connecticut, have passed laws requiring that employees have access to their personnel files. The national trend seems to be moving in favor of passing laws that require employers to provide current and former employees access to their personnel files.

Unionized private sector employees may have additional rights to review or obtain a copy of their personnel files, depending on collective bargaining agreements negotiated between a union and an employer. Federal employees generally have the right to obtain a copy of their personnel files through the Privacy Act of 1974, 5 U.S.C. § 552a. Virginia public sector (State or County) employees have the right to review their personnel files under Va. Code 2.2-3705.1 and Va. Code 2.2-3705.5.

In addition, if a personnel matter goes to court, an employee will typically be able to obtain a copy of his or her personnel file through litigation procedures.

Advice to Employees and Employers

If employees do not have a statutory or other right to obtain a copy of their personnel file, we advise that they still request the ability to review it. Even though employers may not have a formal policy on personnel files, human resources often will grant an employee’s request to review his or her personnel file.

We advise employers to consider allowing employees, under certain conditions, the ability to review their personnel file even if it is not required. This often has a positive effect on workplace morale and helps to limit suspicion in the workplace. It also gives the employer the ability to clearly document that an employee was put on notice where disciplinary or performance actions have been taken. An employer should certainly have a policy in place that is consistently applied to all employees.

Our firm represents federal employees and private, state, and county employees and employers in Virginia, the District of Columbia, and Maryland regarding employment matters and requests for information from personnel files.  We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

  • fail4sure

    Prepare to have witnesses and confrontations from some employees. We had an employee two years ago (subsequently terminated) who insisted on physically taking the file and photocopying its contents. It got ugly and didn’t end well…

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