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    4.  » Employee Rights under the Personnel Files Act

Employee Rights under the Personnel Files Act

Job retention and job hunting in today’s business climate can be difficult at best. People who want to take steps to retain their jobs, or want to ensure that there are no blemishes on their personnel records which might impair their ability to secure a new position, have a vested interest in reviewing their employment records. Pennsylvania’s Personnel Files Act allows employees the right to inspect certain portions of their employment records for these and other purposes. The Act is codified at 43 P.S. §1321 et seq..

The purpose of the Personnel Files Act as explained by the Commonwealth Court is to acknowledge the right of both public and private employees to review files held by their employers that contain information about themselves, and not to permit access to employees’ personnel files by the general citizenry of Commonwealth. Bangor Area Educ. Ass’n v. Angle , 720 A.2d 198 (Pa.Cmwlth. 1998).

The Act contains three key definitions: employee, employer, and personnel file. The definitions are reproduced below:

  • Employee Any person currently employed, laid off with reemployment rights or on leave of absence. The term “employee” shall not include applicants for employment or any other person.
  • Employer Any individual, person, partnership, association, corporation, the Commonwealth, any of its political subdivisions or any agency, authority, board or commission created by them.
  • Personnel file If maintained by the employer, any application for employment, wage or salary information, notices of commendations, warning or discipline, authorization for a deduction or withholding of pay, fringe benefit information, leave records, employment history with the employer, including salary information, job title, dates of changes, retirement record, attendance records and performance evaluations. The term “personnel file” shall not include records of an employee relating to the investigation of a possible criminal offense, letters of reference, documents which are being developed or prepared for use in civil, criminal or grievance procedures, medical records or materials which are used by the employer to plan for future operations or information available to the employee under the Fair Credit Reporting Act.

Judge Friedman of the Commonwealth Court, writing in dissent Beitman v. Department of Labor and Industry , 675 A.2d 1300 (Pa.Cmwlth., 1996) explained that without this right of inspection, an employee would have virtually no way of correcting errors in her file, asserting and enforcing her rights to promotion, compensation, and the like, or protecting herself from improper or illegal termination. Judge Friedman was dissenting from the majority opinion which held that a former employee who requested her personnel file more than two years after her termination was barred from obtaining it because she was no longer an “employee” as defined in the Act. However, the majority also pronounced that “this Court does not interpret the phrase ‘currently employed’ in Section 1 of the Act so stringently as to prohibit an individual from obtaining his or her personnel file when such request is made contemporaneously with termination or within a reasonable time immediately following termination.” Beitman , 675 A.2d at 1302.

While the employee may be permitted to inspect his or her file, the employee is not permitted to remove it. 43 P.S. §1323. The Act also provides that “[t]he Bureau of Labor Standards of the Department of Labor and Industry is hereby authorized and directed to enforce the provisions of this act, and upon a petition and hearing by either an employer or employee, to make and enforce such orders as the bureau shall deem appropriate to which order will provide access to said records and the opportunity for an employee to place a counter statement in his or her file in the event an alleged error is determined by an employee in the personnel file.” 43 P.S. §1324.

The Personnel Files Act provides a powerful tool for employees to access, review, and provide feedback regarding their employment records, and provides employers with guidelines for making those records available to employees. In an age where people can become litigious at the drop of a hat, and good record-keeping is paramount, Pennsylvania’s Personnel Files Act provides the means for employees to ensure that their employer’s paper trail is in good order.

Employers or employees who have questions regarding a person’s right to review employment records should contact the employment law attorneys at Wolf, Baldwin & Associates, P.C. for further information or to schedule a consultation.

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