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Jun 12, 201812:35 PMLaw at Work

with Jessica M. Kramer and Ashlie B. Johnson

12 tips for maintaining — and allowing access to — personnel files

(page 2 of 2)

7. Do I, as the employer, have a certain amount of time to provide the employee file? 

Yes, seven “working days,” or business days. This excludes weekends and state-recognized holidays.

8. Can I charge the employee for the copies? 

Yes, as long as the charge is reasonable and does not exceed the actual cost of reproduction. 

9. What if I do not provide the file within the required time period? 

As harmless as this may seem, there can be pretty harsh penalties for not complying. Either an employee, or the Department of Workforce Development, the state agency that assists with enforcing employment laws in Wisconsin, can bring an action against the employer that does not allow access to an employee file in order to force compliance with the statute. Penalties can also be issued against the employer of $10 to $100 for each violation. Finally, if an employer terminates or takes another adverse action against an employee because the employee made a request for his or her file under this law, the employer may be liable for retaliatory termination under fair employment laws.

10. What if I don’t keep employee files? 

This could be an entirely separate blog post. Keep this in mind: if you do not have documentation to back up your reasoning for disciplining, firing, promoting, demoting, or any other actions you have taken with respect to an employee, you may find yourself in a precarious position when that employee (or a different employee, claiming, for example, discriminatory treatment) asserts a claim under any number of laws that are designed to protect employees.

At the same time, these requirements do not require you to create documents you otherwise would not create in the ordinary course of business. It’s just that if you have paperwork that, say, documents a verbal warning given to an employee, you must place a copy of it in the employee’s file.

11. Is there anything from the employee file that I can hold back and not give to the employee? 

The right of the employee to inspect (or have copies of) his or her personnel records does not apply to:

  • Records relating to the investigation of possible criminal offenses committed by that employee;
  • Letters of reference;
  • Test documents, except that the employee may see a cumulative total test score;
  • Staff management planning documents (i.e., projections);
  • Information about a person other than the employee if disclosure would constitute an invasion of that other person’s privacy;
  • Records relevant to any pending claim between the employer and the employee that may be discovered in a judicial proceeding.

12. What if the employee disagrees with something in his or her file? Do I have to allow the employee to do anything about it?  

First, depending on what the disagreement is about, a simple correction to the file may be appropriate. If employer and employee cannot agree on a correction, the employee has the right to submit a written statement explaining the employee’s position, which the employer then must attach to the disputed portion of the personnel record. The employee’s statement must be included whenever that disputed portion of the personnel record is released by a third party as long as the disputed record is a part of the file.

Keep in mind that the above are very general statements regarding personnel files and are not intended to serve as legal advice. For a more thorough evaluation of your particular obligations, contact an experienced employment law attorney.

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About This Blog

Jessica M. Kramer is a partner at Kramer, Elkins & Watt LLC in Madison and writes about employment law. At KEW she handles employment law matters for businesses and individuals, and represents landlords in all aspects of landlord-tenant law. Jessica received her undergraduate degree from UW–Madison in 2000 and her Juris Doctor from the UW Law School in 2004.

 Ashlie B. Johnson, PHR, is the owner of Brooke Human Resource Solutions, serving the Dane County area. BrookeHR operates as an independent HR contracting resource for small businesses, providing a wide range of support as well as policy language, documentation, and employment agreements that meet today’s complex compliance standards. Ashlie received her B.S. in Human Resource Management from St. Cloud State University in 2002 and has been a certified PHR since 2007.

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