You have just terminated your most problematic and least productive employee. The employee leaves the premises immediately after his termination but then returns a few hours later with a request. He wants to review his personnel file. As an employer that terminated this employee just a few short hours ago, are you required by law to allow the former employee to review his personnel file? It depends.
In the recently decided case of Thomas Jefferson University Hospitals v. Pennsylvania Department of Labor and Industry, Bureau of Labor Law Compliance, No. 2275 C.D. 2014 (Pa. Commw. Ct. Jan. 6, 2016), a Pennsylvania court interpreted a specific provision of the Pennsylvania Personnel Files Act and found that it provides recently terminated employees with the right to review their personnel files.
In Thomas Jefferson University Hospitals, a week after her termination from employment with Thomas Jefferson University Hospitals (TJUH), Elizabetth Haubrich made a request to inspect her personnel file. TJUH refused to provide her access because Haubrich was no longer employed by TJUH. Haubrich filed a complaint with the Department of Labor and Industry (the “Department”) and the Department directed TJUH to allow Haubrich to review her file. TJUH did not comply and petitioned the Commonwealth Court for review of the Department’s directive.
Under the Pennsylvania Personnel Files Act, “an employer shall, at reasonable times, upon the request of an employee, permit that employee to review his or her own personnel files used to determine his own qualifications for employment, promotion, additional compensation, termination or disciplinary action.” The Act defines an employee as “any person currently employed, laid off with re-employment rights or on leave of absence…” TJUH argued before the Court that Haubrich did not fit the definition of “employee” as provided for in the Act.
The Court began its analysis by reviewing the definition of the word “current” in the dictionary, which is defined as “presently elapsing, occurring in or existing at the present time, or most recent.” The Court ultimately opined that because Haubrich was terminated one week before she made her request to review her file, she qualified as a “presently elapsing employee” or most recent employee, falling within the definition of “current employee” in Act. The Court found that because the Act explicitly allows someone to inspect his/her personnel file to determine the basis for his/her termination from employment, it only makes sense that a recently terminated employee has the right to review his/her file.
In contrast to Pennsylvania, New Jersey does not have any specific laws regarding an employee’s right to review a personnel file. Although there is no specific requirement that employees be allowed to review their personnel file in New Jersey, if an employee makes his/her request in order to prove that the employer has been discriminating against him/her and the employee is found to have been fired for making the request, the employer may be considered to have illegally retaliated against the employee. See Velantzas v. Colgate-Palmolive Co., 109 N.J. 189 (1988) (holding that Plaintiff can pursue a claim of retaliation alleging that she was terminated because she requested to review her personnel file in order to find documents to support her gender discrimination claim). Another factor that employers must consider is that refusing an employee’s request to review a personnel file may lead to unnecessary and expensive litigation because an employee may feel like the employer is hiding something (potential unlawful activity). By providing access to employees, the employer can present an impression of transparency making it less likely that an employee will bring suit.
So what does this mean? If you are an employer in Pennsylvania, your actions regarding current and former employees’ requests to review personnel files are specifically governed by law. If a current employee or recently terminated employee requests to review his/her personnel file, you must allow him/her to do so. If you are an employer in New Jersey, there is no specific law governing an employee or former employee’s access to his/her personnel file, so an employer must analyze each request on an individual basis to determine the best response.