Why Employers Should Be Concerned about the Personnel File Bill



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Once again, a bill -- HB 4010 -- has been introduced in the legislature that would give all employees the right to inspect and copy their personnel files. This year, however, it appears to have increased support and stands a greater chance of passing.


At first blush, this may not sound like such a big deal. There are states where employees have the right to examine their personnel files, and this has been true for some time. The problem with this bill, however, lies in how broadly "personnel file" is defined. The "personnel file" is not limited to the employee file that is maintained in the Human Resources or payroll department. Rather, it includes every "paper, document and report" that is used to determine any aspect of employment ? promotion, compensation, discipline and any other action deemed "adverse." (This could include assignment to a crew, vacation preference, transfer, etc., depending on how the term "adverse" is construed.)


Every paper could obviously include notes in supervisory files, maintenance logs, reports about crew and/or departmental meetings, and any number of writings that typically don't follow employees when they move from one job or department to another. Most employers simply don't regard these writings as part of a "personnel file," and they are not equipped to track down every piece of paper that specifically mentions an employee and was arguably used to make a decision about that employee which he or she considers to be adverse.


Under this bill, personnel file also includes confidential information pertaining to investigations of losses (e.g., theft), misconduct and suspected crime if the information is used to determine disciplinary or other adverse personnel action. Why is this a big deal?


Most employers know how difficult it is to get employees to divulge information about other employees in an investigation for example, into suspected theft or fraud or harassment. However, currently employers can and should assure coworkers that their statements will be regarded as confidential, and will only be shared with those with a need to evaluate the information in order to make a decision. If this bill passes, that will change, and obtaining relevant information will become that much harder.


Furthermore, a report concerning an investigation into a loss of money or materials is apt to contain a description of the process by which the loss was identified, safeguards that are designed to prevent losses, an analysis why these safeguards have and have not worked, and other sensitive information. Clearly, this is not information that a business worried about protecting its assets wants to divulge, nor should it have to divulge this information.


This bill was introduced by Delegates Fleischauer, Caputo, Marshall, Hatfield, Guthrie, Susman, Perdue, Frazier and Stowers. It has been referred to the House Energy, Industry and Labor, Economic Development and Small Business Committee. If you are concerned about the impact this legislation may have, you may wish to talk to your representatives. There are a number of other bills that have employment-related ramifications for business as well. If you would like further information in this regard, please contact a member of our Governmental Relations team.