File this under “Important!”: Employee Files

Dear Mary, I terminated an employee recently and they just sent me a letter demanding that I send them their employee file and payroll records. Am I required to do this? What do they have access to?

You raise two major issues: 1) are you required to give an employee their employee file; and 2) what specific information must you provide? In this week’s column, I’ll answer the first question. Stay tuned for part two, in which we’ll look at what particular documents they can see and which documents you do not have to provide.

To answer the first question: You absolutely must allow employees reasonable access to inspect their personnel file and the opportunity to inspect or copy their own payroll records. That doesn’t mean that you necessarily have to send them a copy of the contents of their file, or that they even have the right to copy their file — it just means that they have the right to inspect it.

To make it easier for your employees, you should either keep a copy of each employee’s personnel file at the employee’s primary work location and make those records available within a reasonable amount of time after an inspection request, or allow the employee to inspect the records at the location where you keep them. Regardless of how you store records, employees may not be penalized or lose wages when they inspect their file.

You must allow inspection at “reasonable” times. “Reasonable” usually means during the office’s regular business hours, or during the employee’s regularly scheduled work shift. You need to give the employee sufficient time to thoroughly inspect their record(s), which will depend on the volume and content of the file.

Having said that, if you receive a written demand from a recently terminated employee to provide their file, it’s probably a good idea to send a complete copy in the manner requested. What you don’t want is a former employee who claims that you added or deleted items later to cover any wrongdoing.

How long do you have to allow a former employee the right to inspect? Employees may inspect their records until the statute of limitations expires on any claims. Keep in mind that a breach of contract claim has a statute of limitations of four years, so you may have to allow inspections for at least that long.

You may be liable for civil penalties and injunctive relief for failure to allow an employee to access their file. There are also different rules for public and large employers.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached at mary@hudsonluros.com or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information. In a perfect world we wouldn’t need disclaimers — or attorneys.