Your Personnel Records | Privacy Rights

Your employer is required by law to keep some tabs on you—including information on your wages and hours, workplace injuries and illnesses, and tax withholding, as well as records of accrued vacation and other benefits. That information is usually gathered together in one place: your personnel file. Your file will usually contain little information you did not know or provide to your employer in the first place.

But personnel files can sometimes become the catch-alls for other kinds of information: references from previous employers, comments from customers or clients, employee reprimands, job performance evaluations, or memos of management’s observations about an employee’s behavior or productivity. When employment disputes develop, or an employee is demoted, transferred, or fired, the innards of his or her personnel file often provide essential information—often unknown to the employee—about the whys and wherefores.

A federal law, the Privacy Act (5 U.S.C. § 552a), limits the type of information that federal agencies, the military, and other government employers may keep on their workers.

However, private employers have a nearly unfettered hand when it comes to the kind of information they can collect. While many states now have some type of law regulating personnel files (see the following chart), most of these laws control not the content of the files, but:

• whether and how employees and former employees can get access to their personnel files

• whether employees are entitled to copies of the information in them, and

• how employees can contest and correct erroneous information in their files.

1. Getting Access to Your File

The best way to find out what a company knows about you, or what it is saying about you to outside people who inquire, is to obtain a copy of the contents of your personnel file from your current or former employer.

In some states, the only way you get to see those files is while collecting evidence after filing a lawsuit against the employer or former employer. And even then you might be in for a legal battle over what portions of the files are relevant to the case. But, in many states, you have the right to see the contents of your personnel file—or at least some of the documents in it—without filing a lawsuit.

State laws on employee access to personnel records generally cover technical matters, such as when your request must be made and how long the employer has to respond. Before you request your file, read the law on procedures for your state. In general, you must make your request to see your personnel files in writing to your employer or former employer as soon as you decide that you want to see them. If you send your request by certified mail, you will be able to prove when the request was submitted, should you need that evidence later.

If you live in a state that does not have a specific law ensuring you access to your personnel records, all is not lost. If you wish to see and copy your personnel files, ask to do so. If you meet with resistance, make a more formal request in writing. If that request is denied, and you genuinely believe your records may contain information that is critical to your position, you may need to consult with an expert such as a private investigator or experienced attorney.

2. Criminal Records

According to recent statistics collected by the Bureau of Justice, approximately one-third of the workforce has a criminal record, most commonly including theft. Despite this high proportion of workers with criminal records, many feel they are approached with wariness, or even subjected to abject discrimination, by employers who learn of their histories.

Arrest and conviction records are public records available to anyone, including an employer, who has the wherewithal and incentive to search for them. These records are also kept by a number of agencies—including police, prosecutors, courts, the FBI, probation departments, prisons, and parole boards. These record keepers are theoretically barred from releasing this information to anyone other than other criminal justice agencies and a few types of specialized employers (those who help manufacture controlled substances or run child care or elder care facilities for example.) In reality, however, slips of the tongue are made and persistent employers can generally find the ways and means to get their eyes on the information.

Most states now have laws that specifically bar employers and prospective employers from getting access to records of arrests that did not lead to convictions. And a growing number of states forbid employers from even asking job applicants about such arrests. But some states, including Hawaii and Wisconsin, expressly allow employers to inquire about past convictions that have rational relationships to the specific job the applicant seeks—a theft conviction, for example, for any person who has access to the company coffers.

Still, there are many exceptions to this Don’t Ask, Don’t Tell rule for specific categories of workers, including most bank employees, securities industry and commodities workers, and nuclear power employees.

Also, states are especially mindful of an employer’s need and right to do thorough background checks when employees and volunteers will be working closely with children or adults who are ill or elderly and may be considered vulnerable. Many statutes specify that those working in schools, adult care homes, nursing homes, home care agencies, and facilities for those with mental and physical disabilities may—and often must—be subjected to criminal background checks before being allowed on the job.

Connecticut stands alone in offering employers overt statutory encouragement to hire qualified applicants who have criminal records.

Whatever the state of the law, the reality is that employers customarily bend and trample on the rules against asking about former arrests and convictions. And, in most states, private employers can check—and are often duty-bound to check—the conviction records of prospective employees. Since most records of criminal convictions are freely open to the public, there is usually little a job applicant or employee can do to stop an employer from discovering them.

3. Medical Records

Medical information about employees comes into the workplace a number of ways. It is volunteered by an employee who is calling in sick. It becomes general knowledge after filtering through the gossip mill. It is listed on the insurance application for a group policy, which your employer will likely have on file.

As a general legal rule, employers are not supposed to reveal medical information about employees unless there is a legitimate business reason to do so. Again, that nebulous standard, so often used as a fall back in workplace controversies, provides little guidance because it is so poorly defined.

In an attempt to curb witting and unwitting leaks of medical information in the workplace, the Americans With Disabilities Act, or ADA—the broad federal law prohibiting disability discrimination on the job—imposes strict requirements on how and where employers must keep medical information on employees.

Under the ADA, medical information must be kept separate from nonmedical information in a secure location—and access to it should be limited to a designated individual.

The law also limits those entitled to learn about medical information in the workplace to:

• supervisors of employees whose work duties are limited or who require some accommodation because of a medical condition

• first aid and safety workers who may need to administer emergency treatment or respond during an evacuation, and

• government and insurance officials who require the information for official business purposes.

Still, despite the confidentiality measures imposed by the ADA, information leaks and abuses still occur. If you are concerned about keeping your medical information confidential and out of the workplace limelight, you must take active steps to do so. If you confide any medical information about yourself to coworkers, ask them not to tell others. Inform all doctors who treat you that they should not reveal anything about your health or treatment to another person without getting a release, or written permission, from you first.

4. Credit Information

This era of the computer is also the era of the ever-present personal credit rating. Credit bureaus—profit-making companies that gather and sell information about a person’s credit history—have become a booming business. And the growing power and popularity of the computerized credit rating has found its way into the workplace, as well.

Many employers now use the same credit bureau files used by companies that issue credit cards and make loans to do routine credit checks on employees and job applicants. Unfortunately, there is very little you can do to prevent employers from evaluating your credit history in deciding whether to hire, promote, or even continue to employ you.

a. Employers’ Access to Your Record

A federal law, the Fair Credit Reporting Act (15 U.S.C. §§ 1681 and following), requires credit agencies to share their data only with those who have a legitimate business need for the information, and employers generally qualify. Employers are given broad access to an individual’s credit report, which they can use to evaluate eligibility for “employment, promotion, reassignment, or retention.” In short, as far as your employer or prospective employer is concerned, your credit rating is an open book.

Credit bureaus typically track not only your bill-paying habits, but also all companies that have asked to see your credit rating when you apply for credit, insurance, a place to live, or a new job. The result is that employers increasingly use credit bureau files to find out whether an employee is job hunting with other companies. And prospective employers may use a shaky credit report to conclude that it is risky to welcome you aboard.

However, an amendment to the Fair Credit Reporting Act gives you some rights to know how and whether a current or prospective employer is using credit information about you. It requires an employer to get your written permission before peeping at your credit report. And the words granting permission can’t be buried deep within a job application form or other word-laden document; you have to sign separately to signal your approval.

While this sounds like strong stuff at first, the truth is that, if you refuse to give approval to the employer’s wondering eyes, you will leave the impression that you have something to hide—and that will likely kill your chances for getting or keeping the job.

Also, the amendment mandates that a prospective employer who rejects you for a job based “in whole or in part” on an item on your credit report must give you:

• a copy of the report before turning you down, and

• written instructions on how to challenge the accuracy of that report.

Again, while this smells at first whiff like strong consumer protection, the reality is that it is tough to track whether employers have followed the letter of the law. They remain free to claim that you were turned down for reasons entirely separate from the harsh marks on your credit report.

b. How to Take Action

Amendments to the Fair Credit and Reporting Act at least theoretically give you some idea of whether you are up against an employer marauding for credit information that might cause you to lose out on a job.

And an employer who uses your credit information against you is not only supposed to fess up to it, but must also give you the name, address, and telephone number of the credit agency that provided the report about you. You are entitled to a free copy of the report from that agency.

You also have the right to correct any errors in credit reports compiled about you, and most experts recommend that you check and correct your file every few years, especially if you will be job hunting or applying for credit.

Call the nearest office of the Federal Trade Commission, listed in the federal government section of the telephone directory, for guidance on how to correct the report, or check the FTC’s website, at www.ftc.gov. If you suspect a misuse of your credit report, you may want to contact your state consumer protection agency or attorney general to see whether state laws give you additional avenues for action.