Documents excluded from personnel file

Still Need Coffee · June 2010

Question on "supervisor's files" vs "personnel files."

We keep the standard documentation in employee files: new hire paperwork, resumes, disciplinary reports, performance reviews, etc. My question is how to protect "supervisor's files," those files that supervisors keep on each of their employees.

Here's the situation - employee wishes to see their employment file (no problem). I'm trying to avoid her stating that the company failed to provide the entire file, as we do not keep the entire body of documentation ever produced about an employee in the actual employment file kept by HR. For example, when a supervisor writes a memo to themselves detailing the particulars of a meeting they had with the employee, or e-mails containing drafts of disciplinary reports.

Does anyone know of a court precedent or other useful information to support excluding these things from the employee file? :help:

Dasher · June 2010

There is no obligation that I am aware of on the part of the employer to allow access to supervisory files that are not part of the personnel file. In fact, they are not HR files, even if the supervisor requested feedback on drafts, etc. Even if you later introduce the supervisory documents in a court case of some kind, since they are not part of the personnel file -- the employee has no claim to view them. (This would not be true of disciplinary notices or memos directed or copied to the personnel file -- those should be available).

Additionally, there are some things that are removed from employee personnel file review (background checks, reference checks, etc., for privacy reasons) when an employee wishes to review the file.

ACU Frank · June 2010

I play it safe on this one. Our supervisors are told that everything in any files they maintain must be 'appropriate' for the official file. About the only things they should have that I don't would be routine measurements of day-to-day performance, such as balancing results, and those are compiled into monthly reports that go in their official file anyway.

davids · July 2010

You need to check your state's laws. In my state an employee has a right to see their personnel file; and the definition of personnel file includes supervisory files. With few exceptions such as reference checks, any documents that will be used to make employment decisions are considered part of the personnel file even if they are kept separate from the "official" file.

Holly Jones · July 2010

For the statutory basics, I checked [I][url=http://www.hrhero.com/50x50/]Fifty Employment Laws in Fifty States[/I][/url] for details on the Illinois law on this. Employees in IL do have the right to examine and copy their personnel files (as do former employees for a period of up to one year). Employers must grant at least two inspection requests in a calendar year when they're made at reasonable intervals.

What constitutes a "personnel file" in IL is governed by the Illinois Personal Record Review Act (820 ILCS Section 40/1 et seq.), which covers "any personnel documents which are, have been or are intended to be used in determining that employee's qualifications for employment, promotion, transfer, additional compensation, discharge or other disciplinary action...."

I would personally argue that the question is one of intent -- are the supervisor's files intended to be used in determining any of these matters, or do those matters hinge solely on the data that's actually in the standard "personnel file." If the file/information may be used in the matters listed above, then I'd play it safe and include it.

The Act does list a few exceptions (files that employees are not entitled to see), which I've included below, but none of them seemed to speak clearly to supervisor files.

Exceptions:

(a) Letters of reference for that employee or external peer review documents for academic employees of institutions of higher education.
(b) Any portion of a test document, except that the employee may see a cumulative total test score for either a section of or the entire test document.
(c) Materials relating to the employer's staff planning, such as matters relating to the business' development, expansion, closing or operational goals, where the materials relate to or affect more
than one employee, provided, however, that this exception does not apply if such materials are, have been or are intended to be used by the employer in determining an individual employee's
qualifications for employment, promotion, transfer, or additional compensation, or in determining an individual employee's discharge or discipline.
(d) Information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of the other person's privacy.
(e) An employer who does not maintain any personnel records.
(f) Records relevant to any other pending claim between the employer and employee which may be discovered in a judicial proceeding.
(g) Investigatory or security records maintained by an employer to investigate criminal conduct by an employee or other activity by the employee which could reasonably be expected to harm the
employer's property, operations, or business or could by the employee's activity cause the employer financial liability, unless and until the employer takes adverse personnel action based on information in such records.

Still Need Coffee · July 2010

(f) Records relevant to any other pending claim between the employer and employee which may be discovered in a judicial proceeding.

Would that include EEOC claims? They aren't "technically" judicial proceedings.

Documents excluded from personnel file

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