B. Personnel Records

Carefully review an employee's personnel records and files before making the firing decision and informing the employee. Some states permit terminated workers to review and copy the contents of their personnel files. In some states an employee is to be given access to personnel files used to determine his or her qualifications, promotions, pay raises, discipline and discharge. Other states allow current and ter- minated employees to inspect personnel files maintained by em- ployers. Some of these states also permit inspection by a represent- ative designated by the employee.

Most states also give employees the right to review information supplied to an employer by a credit reporting agency under the Fair Credit Reporting Act of 1971, as well as to review all medical and insurance information in the file. However, confidential items such as letters of reference, records of internal investigations regarding theft, misconduct or crimes not pertaining to the employee, and confidential information about other employees can generally be denied to the employee.

He /she was fired, the file may contradict these reasons as factually incorrect and or legally insufficient. Thus, all employee records must be reviewed for "smoking guns."

Counsel Comment #124: Never underestimate the importance of reviewing all personnel files of which the employee may also have copies in order to anticipate problems. Where possible, try to limit the employee's access to personnel files and related documents. Smart employees who suspect they may be fired typically plan ahead by gathering copies of all pertinent materials and handbooks before they are asked to leave. Instruct staff in your personnel relations department only to allow the inspection and copying of such records with the approval of management. Instruct staff that they are required always to be present when an employee is reviewing such documents. Some companies allow an employee to take notes from a document but not to make copies. Also, since employees sometimes gain access to these materials via a friend in the personnel department, advise staff that providing employees or ex-employees with access to such information or making copies secretly on their behalf may lead to immediate dismissal.

Employee Access To Records

Employees may have access to their personnel files as part of the discovery process during a lawsuit even in those states which do not ordinarily compel access. And, in many instances, employment data (such as memos placed in an employee's file) which was not subject to employee inspection or received by the employee during his/her employment may not be introduced and used against the employee in a lawsuit.

In a few states an employee can bring a legal proceeding to expunge false information contained in the personnel file and known by the employer to be false. These states allow people to collect attorney fees, fines, court costs and damages in the event an employee discovers false information or errors regarding off-premises activities (e.g., political, associational, etc.) which do not interfere with work duties.