Q: My former employee, Bob, wants a copy of his personnel file. Am I required to give it to him?
A: Yes. In New Hampshire, upon request, current and former employees are entitled to receive a copy of their personnel file. This request does not have to be in writing. An employer must only provide a “reasonable opportunity” to inspect or copy. However, it is important to provide Bob with his personnel file in a reasonable amount of time because he can make a complaint to the New Hampshire Department of Labor if his employer is not complying with its obligations.
The department defines a “personnel file” as any personnel records created and maintained by an employer and pertaining to an employee including and not limited to employment applications, internal evaluations, disciplinary documentation, payroll records, injury reports and performance assessments, whether maintained in one or more locations, unless such records are exempt from disclosure under RSA 275:56.
The definition specifically exempts “recommendations, peer evaluations (and) notes not generated or created by an employer.” Additionally, some records maintained in a personnel file may not have to be provided for other reasons, such as privacy and confidentiality.
When gathering the personnel records for Bob, it is important to look beyond the human resources department. You must also inquire from his supervisor whether she has any additional notes or records that should be included to determine if she has any supplementary documents that could be deemed part of Bob’s personnel file. It is best if the employer develops a record-keeping system under which supervisor notes are periodically incorporated into employee personnel files.
Additionally, Bob’s personnel file can contain negative reviews from his employer, disciplinary violations or adverse information.
In New Hampshire, there is no requirement to notify the employees of the negative reviews. If Bob disputes the contents of his personnel file, and cannot compromise with his employer to remove or correct it, he may submit a written rebuttal along with supporting information, which must be maintained permanently in his record.
To be in legal compliance, you must comply with the labor and employment laws and regulations for each state in which you have employees.
This article does not address all aspects of the personnel records law. You should seek guidance from an attorney when deciding what to keep or not keep in a personnel file.
Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be addressed to: McLane Middleton, 900 Elm St., Manchester, NH 03101 or emailed to knowthelaw@mclane.com. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.