Beginning on January 1, 2017, employees in the private sector will have the right to inspect and obtain a copy of their personnel files and records. Private employers will be required to provide access at least annually to current employees who make the request. Former employees will also have a one-time right to inspect their personnel file after the termination of their employment. The new law allows the employer to require that employees pay reasonable copying costs.
The new law:
- Defines “personnel file” as an employee’s personnel records that are used or have been used to determine qualifications for employment, promotion, additional compensation, termination or other disciplinary action. This includes any personnel records, regardless of whether they are maintained in a conventional file or are maintained in some other place, such as in a supervisor’s desk. Employers are required to use reasonable efforts to collect the personnel records for inspection. Personnel files do not include documents which: a) are required to be placed or maintained in a separate file from the regular file by federal or state law or rule; b) pertain to confidential reports from a previous employer; or, c) pertain to an active criminal investigation, an active disciplinary investigation by the employer, or an active investigation by a regulatory agency. They also do not include any information in a document or record that identifies any person who made a confidential accusation against the requesting employee;
- Does not require that employers create, maintain, or retain personnel files on an employee or former employee;
- Does not require that employers retain any documents that are or were contained in an employee’s or former employee’s personnel file for any specified period of time;
- Does not apply to a bank, a trust company, a savings institution, a credit union, or any other financial institution chartered and supervised under state or federal law;
- Does not apply to public employees because they already have access to their personnel files under the Colorado Open Records Act;
- Allows the employer to restrict the employee’s access to their personnel files to be only at the employer’s office, in the presence of a person responsible for personnel data or delegated by the employer, and at a time convenient to both the employer and the employee;
- Does not authorize a private cause of action against an employer by a person aggrieved by a violation of the law.
What Should You Do?
Employers should review their personnel files and take steps to ensure compliance. Information that is required to be placed or maintained in a separate file from the regular file by federal or state law or rule – such as medical records, certain confidential information, or documents pertaining to active investigations – should be removed from personnel files and stored separately. Employers should establish protocols which identify how and where personnel records are to be kept and how and when they are to be purged. Employers should train their managers on these protocols, so that they can reasonably “collect” and gather the records if and when an employee requests access. Finally, employers should take steps to follow the protocols uniformly and consistently in order to avoid disparate treatment or claims of discrimination or managers “going rogue” by keeping their own, independent files.
Carmen S. Danielson is a Shareholder with Dietze and Davis, P.C., where her practice focuses primarily on employment and civil rights law, employment contracts, and business and licensing contracts.