Access to Personnel Files Law

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 Who Is Allowed to Access My Employee Personnel File?

First, it is important to note that not everyone has access to employment records and personal work records of an individual. Although it may seem obvious an individual’s personnel file from their employment may contain a number of different information which may be considered to be confidential whether under federal or local laws.

Examples of information that is commonly considered to be confidential that is present in an individual’s personnel file include:

  • An individual’s date of birth, including copies of an individual’s birth certificate that may have been used during the hiring phase of their employment;
  • An individual’s social security number, including copies of an individual’s social security card that may have been used during the hiring phase of their employment;
  • An individual’s driver’s license number, including copies of an individual’s driver’s license card that may have been used during the hiring phase of their employment;
  • An individual’s passport, including copies of an individual’s passport that may have been used during the hiring phase of their employment;
  • The home address for an individual, which may be included on hiring documents, their resume used in the hiring process, or checks;
  • Any and all medical information concerning the individual.
    • It is important to note that with many employers mandating covid vaccines, the information concerning whether or not an individual received the covid vaccine still falls under the federal and local protections concerning a person’s right to medical privacy;
    • It is important to also note that medical insurance received through one’s employer, and who is covered by such insurance, is also private information that is not entitled to anyone outside of the individual, without first obtaining their prior approval to release such confidential information;
  • Information identifying the personal information of an individual’s family, including whether or not the individual is married or has children;
  • Information concerning an individual’s professional licenses, especially information concerning an individual’s license information in the law enforcement field;
  • Any other identifying information for the individual, such as their
    • Email addresses;
    • Personal telephone numbers;
    • Insurance information;
    • Bank information; or
    • Vehicle identification numbers.

As can be seen, the amount of information that is contained in a person’s personnel file can include many pieces of information that an individual would want to keep private. Typically, the only people that have access to such information are the employee themselves, the employee’s immediate supervisor, or the human resources department.

However, there are certain situations in which another person may access the information including:

  • When the employee gives their written consent for another person to access their personnel file, such as written consent given to an attorney during a civil lawsuit or when the employee is wishing to be hired at another position; or
  • When a third party makes a written request for the information under the federal Freedom of Information Act (“FOIA”), or another local public information act, such as the Texas Public Information Act (“PIA”), which both allow a third party to request the disclosure of certain information concerned with a member of the federal, state, or local government.
    • It is important to note that both Acts require that a request be made, and then the parties that hold the information must make certain required redactions prior to releasing the information to the member of the public that requested such information; and
    • It is also important to note that certain organizations, such as law enforcement organizations or military organizations have special rights in accessing protected information when considering an individual’s application to such organizations.

Do I Have a Right to Access My Own Personnel File?

As mentioned above, an individual has the absolute right to access their own personnel file. Typically an individual may simply reach out to their human resources department and ask for a written or electronic copy of their complete personnel file.

Reasons why an individual may wish to request their personnel file may be to utilize positive performance reviews that may be contained in their personnel file, or to obtain copies of education or training that they may have obtained during their tenure. Other reasons may include that they need a copy of certain information, such as their pay records or records of their insurance coverage.

As noted above, some states have laws concerning access to any personnel records, including a person requesting a copy of their own personnel records. As such, the individual may be required to first make a written request to their local public information officer requesting their personnel file, before their personnel file may be released. Additionally, an individual may be required to prove their identity prior to their personnel file being released.

It is also important to note that there are many local laws concerning record retention. This means that not every employer will retain an individual’s personnel file for an infinite amount of time. For instance, local laws may allow an employer to destroy personnel files after 1 year from the date that the employee has been terminated or resigned.

Can My Medical Records be Separated from My Personnel Files?

As mentioned above, there are both federal and state protections concerning employee medical records and how such records may be accessed. This means that in order for anyone, including the employee themselves, to access their medical records, they must typically first sign a waiver.

The most commonly cited federal law in relation to the disclosure of a person’s health records is the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), which is a federal law that provides an individual certain protections concerning sensitive health information being disclosed without first obtaining their written consent.

Additionally, The American Disabilities Act (“ADA”) and state laws also impose strict limitations on how an employee’s medical records must be handled. There are also new laws concerning the covid-19 pandemic. In general, medical records of an employee must be kept separate from non-medical records of an employee, and no information from an employee’s medical records may be disclosed.

Is My Personnel File Confidential, And What Happens If Information is not Kept Confidential?

As noted above, an employee’s personnel file is confidential and certain information may not be disclosed without prior approval of the employee themselves. As such, if an employer discloses an employee’s personal information, then federal and local laws allow for that person to civilly sue their employer, former or current, for improper disclosure of their personal information.

Additionally, there are often statutory damages associated with the improper disclosure of a person’s private information.

What Can I Do if My Employer Accessed or Used My Personnel File Illegally?

If your current or former employer accessed or utilized your personnel file illegally, such as a member of the organization accessing the file for the purposes of financial gain, then both the employer and the individual wrongdoer may be sued civilly for any damages suffered by the affected employee.

This means that the employee who had their file accessed may initiate a civil lawsuit based on the employer and individual member of the organization accessing or disclosing their personal information based on illegal access or improper disclosure.

Should I Hire a Lawyer?

If you believe that your employer or an employee of your former employer has illegally accessed or disclosed your personnel file in a manner that violates either state or federal law, it is in your best interests to consult an experienced workplace lawyer.

An experienced employment lawyer will be able to advise you of your rights according to local and federal laws, as well as initiate a civil lawsuit against your employer. Finally, an experienced lawyer will also be able to represent your interests in court, as needed.

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