What's In My File?

Harold Dennison (not his real name) had worked for a waste hauling firm for five years, receiving annual raises and occasional compliments from his supervisor and the company owner.

One day — just out of curiosity — he asked to see his personnel file. His boss assured him that it could be arranged. Mystified, Dennison couldn't imagine how much “arranging” was involved in handing him a manila folder. After a week went by with no word from the supervisor about access to his file, Dennison asked again. This time, his boss seemed somewhat defensive.

“Why do you need to see your file?” the supervisor asked. “Looks like you don't trust us.”

“It's not about my not trusting you,” Dennison responded. “I have no idea what's in there, and down the road it might affect me, and I'd like to know.”

“Are you planning on leaving, Harold?” the supervisor asked. No one's talking about letting you go, and we'd like you to stay, but not if you're going to be giving us a hard time.”

Dennison eventually got to examine his file, but not until after he got his cousin's wife, a lawyer, to phone the company owner. He didn't find anything remarkable, and that, by itself, was reassuring. A month later, Dennison gave notice and now works for another company that, by comparison, gives its employees virtually unrestricted access to their own personnel files. Incidentally, after two years at his new job, he has not yet asked to look at his file.

More and more, employees are insisting on access to their personnel files. The trend has many employers wondering if a protest, a strike or a lawsuit is just around the corner. Meanwhile, company lawyers are cautioning their clients to keep thorough and accurate personnel records.

As things now stand, an overwhelming majority of states have laws addressing employee access to personnel files, according to the Virginia-based Society for Human Resource Management. But what the laws allow workers to do with the files varies considerably from place to place. Some states allow merely inspection, while others permit employees to submit rebuttals to unfavorable information. States without any provision for access include New York, Florida and New Jersey. In addition, Congress has not enacted — nor is it likely to enact anytime soon — legislation requiring employers to give workers access to their personnel files.

Increased job switching, stemming from layoffs or simply a desire for a new work environment, has workers paying closer attention to the contents of a file that might help or hurt them in their job quest. In addition, transferred, demoted or terminated workers are challenging employers' decisions, which ostensibly are based on poorly documented personnel records. If bad behavior or poor performance is the reason for an employee's termination, then the file had better contain substantiating material. Otherwise, a judge or jury could easily conclude the employer has no credibility.

Barry Shanoff Legal Editor Rockville, Md.