Personnel Files

Does Your Boss Keep Notes About You Outside Your Personnel File?

DECEMBER 3, 2008, Undercover Lawyer Writes...

Question:  I have copies of my personnel file from HR. I am hearing from co-workers that the head honcho has files on employees in her office-presumably all of the “bad” stuff. I suppose it is legal for her to have these files.  Are they admissible as evidence in proceedings? My personal documentation is admissible; is this considered her personal documentation?

Answer:  One thing many employers often get wrong is what a “personnel file” is. They think if an employee requests a copy of the personnel file, the employee only gets what is kept in a folder with “employee’s name” marked on it, and which is kept in a file drawer along with a bunch of other employees’ files.

Many employers mistakenly believe that if they keep documents about an employee’s performance some where else (like a “working file”, or in a notebook, or notes in an organizer) then those documents don’t really exist. The employee is not entitled to those documents.

This is not correct.

If state law give you a right to a copy of your personnel file, then you get EVERYTHING that references your job performance — without any regard to where the documents are physically kept. Formal personnel file, working file, wadded up notebook paper, post-it notes… it doesn’t matter!

If an employer denies that document outside of your personnel file exist and will not give you copies (even though you KNOW those documents exist), the your employer will not be able to use those ’secret documents’ against you.

If your dispute with your employer goes to court and your employer continues to deny the documents exists, then your employer could face being sanctioned for discovery violations. Such sanctions frequently include fines, prohibiting the use of the documents against you, and payment of some of your attorney fees.

Conclusion:  Unless you have a witness who has seen the mystery documents, you may not be able to get those papers unless you go to court. BUT, you will not have to fear those documents being used against you. If your employer insists on keeping secrets about you, the court will deem those secrets to be non-existent.