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Access to Personnel Files

On Behalf of | Mar 3, 2015 | Employment Law

Both current and former workers are, upon their request, permitted a reasonable opportunity to inspect their personnel file and to obtain a copy of that file subject to a reasonable fee related to the cost of copying the requested documents under New Hampshire RSA 275:56. If after inspection of the personnel file the worker disagrees with any information contained in the file and the worker and the employer cannot agree upon the removal or correction of the information, the worker may submit a written statement explaining her version of the information together with evidence supporting such a version. Her statement shall be maintained as part of the personnel file and any transmittal of the file to a third party should contain that statement.

The definition of “personnel file” is not merely what the employer places in a folder titled “personnel file”. It also includes payroll, disciplinary review, promotion, worker’s compensation and benefits records, any contracts signed by the worker such as confidentiality and non-compete agreements as well as signed documentation acknowledging the receipt of any employment policies and manuals.

If there is an internal investigation of the worker by the employer, the employer may be able to exclude from the worker’s personnel file documents related to the internal investigation until and unless the internal investigation produces information that results in the initiation of a disciplinary process. By way of example, if a co-worker makes an allegation that certain actions by the worker constituted sexual harassment and the Human Resource Manager, in performing the internal investigation, determines that even if the allegations were true that they clearly did not constitute sexual harassment, the Human Resource Manager might very well terminate the investigation without ever informing the worker that he had been accused. In that case, should the worker subsequently ask for his personnel file, the employer would have a legally supportable position in not providing the co-worker’s report of sexual harassment since no disciplinary action was taken against the worker.

Employers do not have to provide information in the personnel file of a worker who is the subject of an investigation at the time of his request if the disclosure could prejudice law enforcement or the information is related to a government security investigation.

When an employer is in doubt as to what documents must be produced to a worker or former worker upon request, the employer would be well advised to contact legal counsel. If the worker were to subsequently bring an employment claim against the employer, and through the litigation obtained documents that should have been disclosed originally as part of the personnel file, the worker may attempt to use the lack of disclosure of those documents in response to the initial personnel file request as evidence of the employer’s attempted deception.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].