February 29, 2024
In many states, employees have a right to review their personnel files. In other states, they do not. At present, it appears that 18 states have laws requiring employers to provide employees with at least some access to personnel files. The rights provided by these laws vary in terms of which employees are entitled to review (public employees vs. private employees; current employees vs. former employees), when an employee may review their files, whether employees can make copies, and the terms and conditions under which an employee may review files. About 32 states have no such laws. See: Kate Stacey, Personnel File Laws by State – (2024 Guide). Some municipalities also have such laws.
Prior to 2014, employees in Colorado had no right to review their personnel files. However, in that year, the Colorado Legislature passed Colorado Revised Statute § 8-2-129, which provides that employees are entitled to review and copy their personnel files up to once per year. Former employees may review and copy their files once following termination. In both cases, the employer may charge for reasonable copying costs. Further, the employer may require that the review occurs at a mutually convenient time and in the presence of a representative of the employer. The statute does not apply to banks and certain other financial institutions or organizations which are subject to the Colorado Open Records Act.
What is included in a “personnel file” is not entirely clear. The statute’s definition of the term includes records of an employee “that are used or have been used to determine the employee's qualifications for employment, promotion, additional compensation, or employment termination or other disciplinary action.” It does not include documents or records required to be maintained in a separate file from the regular personnel file by federal or state law or rule, such as records related to a disability; documents or records pertaining to confidential reports from previous employers of the employee; or an active criminal investigation, an active disciplinary investigation by the employer, or an active investigation by a regulatory agency. It also does not include any information in a document or record that identifies any person who made a confidential accusation, as determined by the employer, against the employee who makes a request. This makes it clear that “personnel file” is not limited to the folder that the Office Manager or HR Department has in a filing cabinet or in an electronic file.
The statute specifies that the records should be produced “in the manner maintained by the employer and using reasonable efforts by the employer to collect…” Thus, if the employer’s “file” does not contain all of the documents specified in the definition, the employer will be required to make reasonable efforts to gather other documents.
However, the law does not require employers to keep personnel files or, if it does, to retain any documents in a personnel file for any particular period of time. (Note, however, that other employment laws do require retention of certain documents for specified periods of time.)
There are no specific enforcement mechanisms. The law does not provide for a private right of action for an employee or former employee who is denied access to a personnel file in violation of the statute. However, the Colorado Department of Labor’s general authority to enforce workplace laws, which includes the ability to impose fines, does apply. Compared to other employment statutes, the enforcement mechanisms of this statute are weak, often leaving employees with an inadequate remedy. Nevertheless, administrative enforcement could result in fines and penalties. Many of the other states which have laws on this subject have much stronger remedies. See, e.g., Del. Code Ann. tit. 19 § 735 (fines up to $5,000).
For national and regional employers, this is another part of the “patchwork” of employment laws which pose a challenge. To ensure compliance, employers with employees in more than one state should become familiar with the rights of employees to review their files in all the states in which they have employees, and in some cases municipal ordinances.