In this age of electronic records storage, many employers wonder whether their employees still have the right to review their personnel “file” when so many (or perhaps all) of a business’s employment records tend to be stored in an electronic format. And what about the rights of former employees?
State personnel file review laws still apply, despite most of these laws pre-dating the modern era of electronic storage of employee information in databases and HRIS systems. The confusion for human resources is what actually constitutes an employee's "personnel file", when it is becoming increasingly less frequent that an employer maintains an actual folder or file of papers in the HR department’s filing cabinet constituting an employee’s records. If an employer does still maintain a traditional personnel file, it very likely is not a complete sphere of records that state laws define as the employee’s personnel file or personnel records.
Michigan’s ‘personnel file’ law (Bullard-Plawecki Employee Right to Know Act) defines a personnel record as any document retained by an employer that identifies a worker and is used to determine aspects of that employee’s terms and conditions of employment – whether that involves performance, pay, discipline, promotion, etc. The burden is always on an employer to be able to identify those documents – whether retained in paper form or in an electronic database - that satisfy a state law's definition of a personnel record regardless of whether those documents are in control of human resources, operations, payroll/accounting/finance, or an individual supervisor. And former employees have the same right to review and receive a copy of their personnel “file” as do current employees.
For those employers who seek some level of comfort in federal or state approval to store employee records electronically - get used to forging ahead on your own. There is a significant lack of governmental guidance in the way of specific authority to store personnel records in electronic versus in conventional paper format.
Nevertheless, time and technology seems to have marched on without federal government guidance authorizing electronic storage of personnel records. Most federal agencies to which employers must file reports not only accept, but strongly encourage or require, documents to be submitted to those agencies only in electronic format.
Contributed by Gary Chamberlain of Miller Johnson.