A common question that arises after an individual separates from his or her employer is whether he or she has the right to access his or her personnel file. The answer is often “Yes,” but exactly when, what, and how often varies between states. A review of the states surrounding Minnesota reveals several subtlety different approaches.
North Dakota, for example, does not provide such a right to private employees. It instead limits the right of access to state employees under North Dakota Century Code 54-06-21. South Dakota is no different (see S.D. Cod. L. Ch. 3-6A-31).
Iowa offers a middle position. Section 91B.1 of the Iowa Code allows an employee to access his or her employee file to see any performance evaluations, discipline records, and other information concerning the employer-employee relationship. However, the employee cannot access any references provided to the employer. Iowa also restricts when a person can access his or her file. In Iowa, an employer and employee must agree to the time and place of the inspection. The employer may also charge a reasonable fee for the copying.
Wisconsin provides that, upon written request if the employer requires it, an employee “may inspect any personnel documents which are used or which have been used in determining that employee's qualifications for employment, promotion, transfer, additional compensation, termination or other disciplinary action, and medical records,” with some exceptions. An employee can view his or her file twice a calendar year, and an employer has seven business days to provide access for the inspection. Notably, Wisconsin does not address post-employment access.
Minnesota provides for access through Minnesota Statute Section 181.96. It allows an employee to access his or her personnel file during his or her employment. The personnel record includes: “any application for employment; wage or salary history; notices of commendation, warning, discipline, or termination; authorization for a deduction or withholding of pay; fringe benefit information; leave records; and employment history with the employer, including salary and compensation history, job titles, dates of promotions, transfers, and other changes, attendance records, performance evaluations, and retirement record.” Minn. Stat. § 181.960 (2013).
Minnesota does not provide former employees the same level of access. Instead, a former employee may access his or her file once a year for as long as the employer maintains the record. The length of an employer’s obligation to maintain certain records for a period after the employment ends depends on how long the person was an employee. The period can range from one to three years.
Finally, Minnesota has a unique requirement. A MN employer does not have to release records unless the employee shows that the request is in “good faith.” Notably, there are no court decisions interpreting this limitation. It is likely much easier to comply that deal with the potential consequence.
Any employee or former employee seeking his or her file must be mindful of the laws that exist in the state where he or she works. There are clear differences, and if you suspect you might need a copy of your personnel file, you will need to ask sooner than later.