F. Access to Records

Some states have passed laws allowing employees access to their personnel records to correct incomplete or inaccurate information at a reasonable time and place. In such states, you usually are not allowed to copy any of the documents in the file except for those you previously signed (such as an employment application or performance review). Such states usually allow you to make notes however. In other states, you generally do not have the right to review your records, so check the law in your state where applicable. (Note: The Federal Privacy Act deals mainly with access to employee records. This law forbids federal government employers from disclosing any information contained in employee files without the written consent of the employee in question. Discuss the ramifications of this federal law with your lawyer where applicable.)

Even in states where access to records is not permitted, employers are prohibited from distributing confidential information, such as medical records, to nonessential third parties and prospective employers, and you generally are permitted to inspect all your files containing confidential medical and credit information. Also, some union employees covered under collective bargaining agreements have the right to examine their own records and to be informed of what information is used in making decisions relevant to their employment.

Tip:Since it is often difficult to review the contents of your personnel file, make and save copies of all documents the minute you receive them so you don't have to retrieve them later. Also, in some arbitrations and lawsuits, employers are prohibited from introducing "memos in the file" that were never read or signed by you. Advise your lawyer about this where applicable.

Counsel Comments:Some states grant workers the automatic right to include a rebuttal statement in their personnel file if incorrect information is discovered. Other states allow employees to do this when the employer will not delete such comments. A few states (notably Connecticut) have laws that require employers to send copies of rebuttal statements to prospective employers or other parties when information pertaining to a worker or her employment history is conveyed. Since each state treats the subject differently, review your state's law if relevant.

Some states require employers to seek workers' approval before employee records can be collected, distributed, or destroyed, and it may be illegal to distribute personal information without your consent. The circulation of confidential memoranda within a company has given rise to lawsuits, particularly where the employer did not take adequate precautions to determine whether derogatory information was accurate.

With respect to medical records and investigations, the law generally recognizes that a duty of confidentiality can arise to protect this information and avoid dissemination to nonessential third parties. Under emerging state laws and case decisions, employers who request medical information may be liable for the tort of intrusion and for the tort of public disclosure of private data. Several states have recognized a claim for negligent maintenance of personnel files when files containing inaccurate medical information are made available to third parties. For example, Connecticut has enacted a statute requiring employers to maintain medical records separately from personnel files and permitting employees to review all medical and insurance information in their individual files.