Most employers understand that they must provide their employees access to their own personnel file and that former employees have a right to a reasonable opportunity to inspect their personnel file and copy all or part of their file with a reasonable charge by the employer. However, it is important to understand what constitutes a personnel file under New Hampshire law. A personnel file is not merely that information the employer deems to put into a folder entitled APersonnel File@. Personnel file by law means any and all personnel records created or maintained by the employer pertaining to the employee. It may include employee applications, internal evaluations, disciplinary documentation, payroll records, injury reports, and performance assessments whether maintained in one or more locations. Information that can be excluded includes:

• Information regarding an employee who is the subject of an investigation at the time of their request if the disclosure would prejudice law enforcement;
• Government security investigation;
• Other information, privileged or confidential by law

For example, if the company=s president sought legal advice regarding handling a particular employee and obtained a letter from the company=s attorney regarding that employee, that letter normally would be able to be kept out of the view of that employee under the attorney/client privilege. However, the communications between the company=s attorney and other employees in an investigation that are not high enough in management levels within the company to be considered by the court as part of the Acontrol group@ may not be privileged and may have to be disclosed as part of a personnel file. If an employee in reviewing information contained within their files disagrees with the information and no agreement can be reached with management regarding its removal or correction the employee is permitted under New Hampshire law to submit a written statement explaining his or her version of the information together with supporting evidence which data must be added by the employer to the personnel file of that employee.

As to terminated employees who request their personnel file, it is important that the employer exercise due diligence in investigating all relevant company files in regard to any information that would be considered under New Hampshire law as part of a personnel file. If the terminated employee does not get certain documents beneficial to the employer until litigation is under way when the ex-employee had asked for the personnel file shortly after termination, fabrication of these documents may be alleged by the employee=s counsel at trial.

If third parties request information in an employee=s or ex-employee=s personnel file, absent a signed authorization by the employee or a legal obligation to do so, the information should not be disclosed by the employer. If the information contained in the employee=s personnel file is subpoenaed, that subpoena should be taken up with the employer=s legal counsel to see whether or not the subpoena is legally sufficient. For example, if the employee or ex-employee is a party to a personal injury suit or divorce action in Massachusetts and the opposing counsel serves a subpoena on a New Hampshire corporation, the Massachusetts subpoena would be invalid in New Hampshire and should not be complied with by the employer unless the employee authorizes disclosure in writing.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, PA whose legal practice includes counseling businesses and business persons on a variety of legal issues and advocating on their behalf. Attorney Marr is also an adjunct professor at Daniel Webster College where he teaches business law. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.