Employers often ask me which emails, documents, and information need to be kept in an employee’s HR records. This matters because employees have a right to view the information in their personnel records, but they do not have a right to other information the employer keeps about the employee.
Below I will explain what is required in an employee’s personnel file, information employers may exclude from personnel files (preventing an employee from seeing it), and the legal process for employees or former employees to obtain their own personnel records.
1. INFORMATION REQUIRED IN AN EMPLOYEE’S PERSONNEL FILE
Minnesota statute explains exactly what employers must keep in the personnel file for each employee:
any application for employment; wage or salary history; notices of commendation, warning, discipline, or termination; authorization for a deduction or withholding of pay; fringe benefit information; leave records; and employment history with the employer, including salary and compensation history, job titles, dates of promotions, transfers, and other changes, attendance records, performance evaluations, and retirement record.
See Minnesota Statutes section 181.960 (first paragraph of subdiv. 4).
2. Information Not Required in Personnel Files
Employers generally should not keep other information in an employee’s personnel file. Under Minnesota law, the following specifically do not need to be in an employee’s personnel file:
(1) written references respecting the employee, including letters of reference supplied to an employer by another person;
(2) information relating to the investigation of a violation of a criminal or civil statute by an employee or an investigation of employee conduct for which the employer may be liable, unless and until:
(i) the investigation is completed and, in cases of an alleged criminal violation, the employer has received notice from the prosecutor that no action will be taken or all criminal proceedings and appeals have been exhausted; and
(ii) the employer takes adverse personnel action based on the information contained in the investigation records;
(3) education records, pursuant to section 513(a) of title 5 of the Family Educational Rights and Privacy Act of 1974, United States Code, title 20, section 1232g, that are maintained by an educational institution and directly related to a student;
(4) results of employer testing, except that the employee may see a cumulative total test score for a section of the test or for the entire test;
(5) information relating to the employer’s salary system and staff planning, including comments, judgments, recommendations, or ratings concerning expansion, downsizing, reorganization, job restructuring, future compensation plans, promotion plans, and job assignments;
(6) written comments or data of a personal nature about a person other than the employee, if disclosure of the information would constitute an intrusion upon the other person’s privacy;
(7) written comments or data kept by the employee’s supervisor or an executive, administrative, or professional employee, provided the written comments or data are kept in the sole possession of the author of the record;
(8) privileged information or information that is not discoverable in a workers’ compensation, grievance arbitration, administrative, judicial, or quasi-judicial proceeding;
(9) any portion of a written or transcribed statement by a coworker of the employee that concerns the job performance or job-related misconduct of the employee that discloses the identity of the coworker by name, inference, or otherwise; and
(10) medical reports and records, including reports and records that are available to the employee from a health care services provider pursuant to sections 144.291 to 144.298.
See Minnesota Statutes section 181.960 (subdiv. 4).
3. Employee’s Rights to HR Records
Minnesota law gives employees a right to get information in their personnel file:
Subdivision 1. Right to review; frequency.
Upon written request by an employee, the employer shall provide the employee with an opportunity to review the employee’s personnel record. An employer is not required to provide an employee with an opportunity to review the employee’s personnel record if the employee has reviewed the personnel record during the previous six months; except that, upon separation from employment, an employee may review the employee’s personnel record once each year after separation for as long as the personnel record is maintained.
Subdivision. 2.Time; location; condition; copy.
(a) The employer shall comply with a written request pursuant to subdivision 1 no later than seven working days after receipt of the request if the personnel record is located in this state, or no later than 14 working days after receipt of the request if the personnel record is located outside this state.
(b) With respect to current employees, the personnel record or an accurate copy must be made available for review by the employee during the employer’s normal hours of operation at the employee’s place of employment or other reasonably nearby location, but need not be made available during the employee’s working hours. The employer may require that the review be made in the presence of the employer or the employer’s designee. After the review and upon the employee’s written request, the employer shall provide a copy of the record to the employee.
4. Former EMPLOYEE’s RIGHTS TO HR RECORDS
Minnesota law also gives ex-employees a right to get information in their personnel file:
(c) With respect to employees who are separated from employment, upon the employee’s written request, the employer shall provide a copy of the personnel record to the employee. Providing a copy of the employee’s personnel record to the employee satisfies the employer’s responsibility to allow review as stated in subdivision 1.
See Minnesota Statutes section 181.966 (subdiv. 2).
About the Author
This was written by Aaron Hall, CEO and attorney at JUX Law Firm.