By: Bill Pilchak – 8/6/15
A recent consultation suggests it is time for a refresher on the subject of producing a personnel file. Employers in Michigan have an obligation to supply a copy of all personnel records regarding an employee upon written request under the Bullard Plawecki Employee Right To Know Act. Sixteen other states grant similar or greater rights to employees of private companies and most states require public employers to provide the file to their employees on request. (Those states are listed at the end of this article.)
In Michigan, an employer is required to produce every “personnel record,” defined as “a record kept by the employer that identifies the employee, to the extent that the record is used, or has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation or disciplinary action.”
Some companies take a narrow view as to what constitutes a personnel record. A request to a company with this perspective might result in the production of only dry personnel action or status change forms, W-4 forms and the employment application. After all, those are the traditional “personnel records.” However, look again at the definition. A personnel record is a record that identifies the employee:
- And “has been used…relative to that employee’s…disciplinary action,”
- Or “may…affect…that employee’s qualifications for…promotion,” etc.
Most discharges involve documents that bear the terminated employee’s name and which have been considered in the decision to discharge:
- The six e-mails from various co-workers reporting that the employee could be heard shouting and hurling F-Bombs at a supplier inside his office;
- The PowerPoint containing the account rep’s name on page 1, and a dozen or so mistakes that she presented to a valued customer to the embarrassment of the Company;
- A security guard’s signature on the daily activity report indicating that he left at 11:00 p.m., when video shows him abandoning his security post and leaving the facility at 10:30.
Unconventional personnel records can be important in a non-discharge context: if the results of a sexual harassment investigation lead to the conclusion that a supervisor conducts himself so recklessly that he would not be considered for promotion, that documentation of the investigation is a personnel record that must be produced upon request.
The penalty for not producing the personnel record is that the employer is stripped of the ability to use the non-produced document in any litigation filed by the employee – although the employee may use the record if it favors his case. In most cases, the company that considers only the ”traditional” personnel forms to be personnel records will be deprived of their best evidence at trial. Imagine not being able to present the error-laden PowerPoint to a jury when that was the straw that broke the camel’s back. How does one convince a jury that the security guard falsified the daily activity report without introducing that record at trial?
In the non-discharge context, if the supervisor who had been the subject of the harassment investigation in 2013, requests his file in 2014 and sees no reference to the investigation, he might have a better case to argue he was passed over for promotion in 2015 because of age, race, etc. If the results of the 2013 investigation suggested he should not be promoted in the future, some document to that effect should have been provided.
Beyond what MUST be produced to the employee, is the question: What SHOULD be produced? Employees don’t request their files to entertain themselves. They turn the file over to an attorney who advises them whether they have a chance of fooling a jury into believing they were fired for race, sex, national origin, age, etc., instead of the Company’s legitimate business reason. If the file contains no documentation of that legitimate business reason, it is easier for the attorney to convince a jury that the reason for discharge was an illegal reason: discrimination, retaliation, etc. Imagine the argument to the jury: “Of course there’s no documentation of the reason for termination…because it was an illegal reason!”
Wise employers produce a personnel file that show they are loaded for bear! Ideally, it contains a termination memo or letter that specifically identifies the reason(s) that termination must occur. They then collect every scrap of paper and every electronic record that shows: a) how many people were attuned to or dealing with the issue; b) the problems the employee caused, such as scrap parts, increased costs, late fees and penalties, missed customer deadlines; c) and most importantly (according to consultants who assess juror attitudes) the burdens placed on other employees, etc. In this respect, HR should assume the role of detective, considering what documents and e-mails exist to show the employee was released over a real issue that had real implications. Ideally, this is done at the time of termination, since it is sometimes hard to resurrect documents and e-mails that made the difference months or years later. However, if not then, certainly, those documents should be gathered up and turned over when the file request arrives. Moreover, ideally, the employer will number the pages produced (by hand, if necessary) and retain a photo-copy of what had been produced, so the employee cannot claim the crucial document was not supplied.
Finally, let me relate a real life story to make the ultimate point of this article. For many – perhaps 15 -years, not one of our clients had ever been sued over a discharge where our firm had consulted and assisted with the termination letter/memo. Finally, one such employee sued. At the deposition, the we sought to assure that employee was provided with the personnel file pursuant to the request we saw in the file. So, the employee was asked what he did with the stack of papers he received in the mail. The employee testified that after the first five attorneys he consulted refused to take his case upon reviewing the personnel file, he threw it out and met with the attorney who now sat at his side, thus alerting counsel that he was stuck in a case that five other attorneys would not touch.
When you send a personnel file, make sure it contains material that shows there was a business reason, not an illegal reason, for such an important decision. And, be sure you are complying with the particular state statute on producing personnel records.
STATES REQUIRING PRODUCTION OF PERSONNEL FILES BY PRIVATE COMPANIES:
AK, CA, CT, DE, IL, IA, ME, MA, MI, MN, NH, OR, PA, RI, WA, WI