Employee Files: 11 Questions Answered

1. Do I have to allow my employees to see their files? Yes, according to Wisconsin law.  Employees have a right by statute to view or obtain a copy of their employee file.
2. Does this apply to current and former employees?   Every current and former employee is entitled to view or obtain a copy of his or her employee file.
3. What is the difference between “employee file” and “personnel file”?   Nothing. Different people use different words to describe the same thing.  Many in the human resources industry may use “personnel” for many things employee-related.  The Wisconsin statute that allows employees to view or obtain copies of files, however, calls them “employee files.”
4. Can an employee make the request by telephone? The employee can, but the employer does not have to honor it.  The employer may insist that it be in writing.  This can be by mail, e-mail, fax, or hand-delivery.  Employers can also allow such requests to be made verbally, in person, but it is a good idea to have a paper trail of such requests.
5. May an employee view his or her file more than once? Yes, up to two times each calendar year.
6. Do I as the employer have a certain amount of time to provide the employee file? Yes, 7 “working days”, or business days.  This excludes weekends and state-recognized holidays.
7. What if I do not provide the file within the required time period? As harmless as this may seem, there can be pretty harsh penalties for not complying.  Either an employee, or the Department of Workforce Development, the state agency that assists with enforcing employment laws in Wisconsin, can bring an action against the employer who does not to force compliance with the statute. Penalties can also be issued against the employer of $10 to $100 for each violation.  Finally, if an employer terminates or takes another adverse action against an employee because the employee made a request for his or her file under this law, the employer may be liable for employment discrimination.
8. Can I charge the employee for the copies? Yes, as long as the charge is reasonable and does not exceed the actual cost of reproduction.
9. What if I don’t keep employee files? This could be an entirely separate blog post. Keep this in mind: if you do not have documentation to back up your reasoning for disciplining, firing, promoting, demoting, or any other actions you have taken with respect to an employee, you may find yourself in a precarious position when that employee (or a different employee, claiming, for example, discriminatory treatment) asserts a claim under any number of laws that are designed to protect employees.
10. Is there anything from the employee file that I can hold back and not give to the employee?  The right of the employee to inspect (or have copies of) his or her personnel records does not apply to:
    • Records relating to the investigation of possible criminal offenses committed by that employee;
    • Letters of reference;
    • Test documents, except that the employee may see a cumulative total test score;
    • Staff management planning documents (i.e., projections);
    • Information about a person other than the employee if disclosure would constitute an invasion of that other person’s privacy;
    • Records relevant to any pending claim between the employer and the employee that may be discovered in a judicial proceeding.
11. What if the employee disagrees with something in his or her file? Do I have to allow the employee to do anything about it?  First, depending on what the disagreement is about, a simple correction to the file may be appropriate.  If employer and employee cannot agree on a correction, the employee has the right to submit a written statement explaining the employee’s position, which the employer then must attach to the disputed portion of the personnel record. The employee’s statement must be included whenever that disputed portion of the personnel record is released to a third party as long as the disputed record is a part of the file.

Keep in mind that included within this blog post are very general statements regarding personnel files. For a more thorough analysis about how this might affect your business, contact Attorney Jessica M. Kramer at kramer@kewlaw.com or 608-709-7116.