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Employee Rights and Notification Requirements:

Right to Access Personnel Records

By Julie A. Doherty, Esq. and Hannah R. Stein, Esq.[1]

April 01, 2011

Many employers provide employee handbooks to new employees. Though an employer must be careful regarding what it says in such a handbook, handbooks are a wise practice in many respects, as they allow employers to set standards for new employees that can be used in any later conflict with those employees. A handbook can also disseminate information – such as sexual harassment policies – that is necessary for employers to protect themselves against legal claims that the employer has allowed or not sufficiently addressed the possibility of harassment.²

In addition to this sort of information, however, Minnesota law specifically requires employers with more than 20 employees to provide certain specific information regarding employment records to all new hires. These requirements are obscure and it is easy for employers not to be aware of them – to their potential detriment if a dispute arises after-the-fact.

Potential liability for violation of personnel record laws

The laws regarding employee access to their personal records may seem unimportant. But violation of these laws can result in significant liability, especially if the employer neglects these requirements on a regular basis.

Department of Labor fines. The Department of Labor can fine an employer for up to $5,000 per violation, plus costs and attorney’s fees, for any violation of the above rules.³ This can include failure to notify an employee of their right to view their personnel record, or for denying an employee proper access to that record.If an employer hires several employees in a construction season, those fines can quickly add up.

Civil suits. Employees who are denied access to their personnel records can sue their employer for actual damages, plus costs.⁴ If the employer retaliates against the employee for requesting access to their records, the employee may sue for and recover actual damages, back pay, and reinstatement or other make-whole, equitable relief, plus reasonable attorney fees.⁵ This remedy would be in addition to any fines charged by the Department of Labor.

Who must provide new hire notices under Minn. Stat. § 181.9631?

The law in question is Minn. Stat. § 181.9631. It requires “employers” (defined as “a person who has 20 or more employees” but excluding government agencies) to provide written notice to a new hire upon hire of certain rights the employee has, and remedies the employee has should the employee be denied his or her rights. An “employee” is defined as a person who performs services for hire for an employer, provided that the services have been performed predominately within Minnesota. The term includes any person who has been separated from employment for less than one year. The term does not include independent contractors.

What are the rights of which the employee must be given written notice?

Employers must notify their employees in writing (in the handbook or by handouts) of the following rights and remedies⁶:

Employees have the right to review their personnel record upon written request, made in good faith, once every six months (one year for an employee who is not longer employed by that employer);⁷
The employer must make the record, or an accurate copy, available for review during normal hours at the employee’s place of employment or at another reasonably nearby location, but need not make the record available during the employee’s actual working hours;⁸
The employer may require the review to be made in its presence or the presence of its designee;⁹
After the review and upon the employee’s written request, the employer is required to provide a copy, at no charge, of the record to the employee;¹⁰
If the employee disputes specific information contained in the record, and agreement is not reached to remove or revise the disputed information, the employee may submit a written statement, not exceeding five pages, identifying the disputed information and explaining the employee’s position, which then must be included as part of the personnel record;¹¹
The employer may not retaliate against employees for asserting their rights under the Personnel Records Statute;¹²
If the employer violates the Personnel Records Statute, the employee may bring a civil action to compel compliance and for actual damages, plus costs and, in cases of employer retaliation, attorney’s fees;¹³ and
If the employer retaliates against an employee, the individual may bring a civil action for actual damages, back pay, reinstatement or other make-whole equitable relief, plus reasonable attorney’s fees.¹⁴

Employers must provide access to the personnel record no later than 7 working days after receipt of the request, if the personnel record is located in Minnesota, or no later than 14 working days after receipt of the request if the personnel record is located outside of Minnesota.¹⁵

It should be noted that even if the employer has less than 20 employees – even if the employer has only one employee – the employees still have the right to view their personnel records as noted above. The employer simply does not have the obligation to inform the employee of this at time of hire unless the employer has 20 or more employees.

What constitutes part of the personnel record?

The personnel record to which the employee has periodic access includes the following¹⁶:

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
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.

It is recommended that you keep any such documents or information in a separate part of the file for ease of access. The employee does not, however, have the right to access the following¹⁷:

Written references respecting the employee, including letters of reference supplied to an employer by another person
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;

Education records that are maintained by an educational institution and directly related to a student;
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);
Information relating to the employer’s salary system and staff planning;
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;
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;
Privileged information or information that is not discoverable in a workers' compensation, grievance arbitration, administrative, judicial, or quasi-judicial proceeding;
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;
Medical reports and records, including reports and records that are available to the employee from a health care services provider pursuant to Minn. Stat. § 144.291 to 144.298.¹⁸

When the employee disputes personnel record information

What happens when an employee reviews his or her file, and disputes something that is in it? Minn. Stat. § 181.962 provides a specific procedure for the employee and employer to follow, with two options:

(1) The employer and the employee may agree to remove or revise the disputed information; or

(2) as noted above, if an agreement is not reached, the employee may submit a written statement (not exceeding five written pages in length) specifically identifying the disputed information and explaining the employee's position. That statement must be kept with the disputed information in the personnel file as long as the disputed information is kept in the file.If anyone is given a copy of the disputed information they must also be given the employee’s rebuttal statement.

If the employer refuses or negligently fails to keep the rebuttal statement with the disputed information and disclose it along with the disputed information if the disputed information is disclosed, the employer can be held liable for libel, defamation, or slander.

Conclusion

Employers must be sure to be aware of the above records notification and dissemination policies dictated by Minnesota law in order to insulate themselves from potential liability for nondisclosure. However, this is far from the only obscure law regarding hiring of employees of which an employer should be aware and prepared for. For more information regarding other best hiring practices and legal compliance with hiring-related laws, contact the authors of this paper.

[1] Julie Doherty and Hannah Stein are attorneys in the firm’s construction law department, and can be reached at jdoherty@fwhtlaw.com and hstein@fwhtlaw.com respectively.This paper is intended only as an overview of Minn. Stat. § 181.9631 and related provisions, not as a comprehensive description of the details of the statute or employee rights generally.For information, contact the authors of this paper.

[2] For example, if an employer’s handbook sets forth a procedure for reporting sexual harassment claims and an employee claiming harassment fails to take advantage of the protection or corrective opportunities provided by the handbook, the employer may have a defense to the harassment claim.However, handbooks must be carefully drafted so that they are not interpreted as having established a “contract” with the employee.Handbook language can be a trap for the unwary, and employers are strongly advised to contact the authors of this paper before engaging in the drafting of a handbook.

[3] Minn. Stat. § 181.9641.

[4] Minn. Stat. § 181.965.

[5] Id.

[6] Minn. Stat. §§ 181.960-965.

[7] Minn. Stat. § 181.961 subd.2(b).

[8] Minn. Stat. § 181.961 subd.2(a).

[9] Id.

[10] Minn. Stat. § 181.961 subd.2(b), (c).

[11] Minn. Stat. § 181.962 subd.1.

[12] Minn. Stat. § 181.964.

[13] Minn. Stat. § 181.965.

[14] Minn. Stat. § 181.965.

[15] Minn. Stat. § 181.961 subd.2(a).

[16] Minn. Stat. § 181.960 subd.4.

[17] Minn. Stat. § 181.960 subd.4.

[18] Minn. Stat. § 144.291-298 is part of the Minnesota Health Records Act.The pertinent provisions deal with a patient’s right to request or direct the release of their own records.

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Announcements

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Aaron Dean and Hannah Stein will be presenting for the Construction Leadership Council on the topic of “Best Value Contracting” on April 26, 2011, at 4:00 p.m. at the Associated General Contractors offices (525 Park Street # 110, St. Paul, MN 55103). Please contact Aaron at 612.359.7608 or adean@fwhtlaw.com for more details.

On April 26, 2011, Aaron Dean will be one of the hosts for a seminar sponsored by the American Subcontractors Association regarding “Revisions to the New Home Warranty Statute.” Please contact Aaron at 612.359.7608 or adean@fwhtlaw.com for more details.

Greg Spalj is speaking about “Bond & Lien Claims, Insurance & Indemnity” at the Concentrated Course in Construction Contracts on May 9-12, 2011 at the Flamingo Las Vegas Hotel in Las Vegas, Nevada. Please contact Greg at gspalj@fwhtlaw.com for more information on this seminar.

Dean Thomson will be speaking at the National Institute of Governmental Purchasing on two topics: the “Criminalization of Construction – the new False Claims Act” and “The Best Practices for Best Value Procurement” on May 13, 2011 at the Metropolitan Airport Commission’s offices at 6040 28th Ave. So., Minneapolis.For further information, contact Dean at dthomson@fwhtlaw.com.

On May 25, 2011, Julie Doherty and Hannah Stein will be presenting a seminar on “HR and Employment Law 101” for the Association of Women Contractors at the Metropolitan Airports Commission offices. For more information, please contact Hannah at 612.359.7622 or hstein@fwhtlaw.com.

Marv Fabyanske will be speaking on Construction Insurance Fundamentals at the National Business Institute seminar Construction Insurance and Disputes, “What you Need to Know About Coverage, Exclusions, Remedies and Bad Faith” on June 9, 2011 at the Embassy Suites Hotel Bloomington. For more information, please contact Marv at mfabyanske@fwhtlaw.com.

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