What Are the Laws Regarding Access, Disclosure of Employee Personnel Files, Records? authored by Jerome A. Brown

One of the most important records that an employer should maintain is a personnel file on each employee. This file should contain records pertinent to an employee's work history, such as applications, resumes, references, performance reviews, documentation of counseling, discipline & acknowledgments of company policies and handbooks.

As required by the Americans with Disabilities Act and the Family and Medical Leave Act, an employee's medical records and other records of a personal nature should be kept in a file separate from the employee's personnel file.

Employee personnel files are important from a business perspective because they enable the employer to keep track of an employee's work history. Such files are also important from a legal perspective because they can be used to successfully defend employee lawsuits.

For example, if an employee claims that he has been terminated because of his age, but the employer actually terminated him for a non-discriminatory reason, such as insubordination, and the employee's personnel file reflects instances of insubordination, then the employer may be able to successfully defend against the age discrimination claim through the use of such documentation.

One of the questions I am often asked my employer clients is whether an employee has a right of access to his or her file. Here's the answer.

There are no federal laws that require a private sector employer to allow an employee access to his or her personnel file. However, the Occupational Health and Safety Act regulations require an employer to give an employee, or his or her designated representative, access to the employer's medical or related records for review and copying.

A number of states have laws that require an employer to allow employees or their representatives to inspect personnel records. Texas does not have such a law.

However, as a practical matter, most Texas employers will allow an employee to inspect their own personnel file. If this is allowed, the employer should have a supervisor present to ensure that the employee does not remove or destroy any documents.

Employers should also be careful not to freely distribute or allow a third party to inspect an employee's personnel records, because this may constitute a violation of such employee's privacy rights.

However, employers may distribute an employee's personnel records to a third party if such employee consents to the distribution in writing. Employers should be sure to retain such written consent for future reference.