07.11.17 LLM Blog pic


Employment Law Alert: Recently Terminated Employees No Longer Entitled to Review Personnel Files

By: Lisanne L. Mikula, Esquire

Under the Pennsylvania Inspection of Employment Records Law (the “Act”), an employer must permit an employee or the employee’s agent to inspect the employee’s own personnel files.  The Act defines “employee” as a person who is currently employed, laid off with reemployment rights, or on a leave of absence.

Because the Act permits a review of files “used to determine qualifications for . . . termination,” separated employees have long argued that they should be permitted to review their personnel files after their employment has ended.  Employers, however, have insisted that separated employees were no longer “current” employees and, therefore, had no right to review their personnel files once they cease working for the employer.

In January 2016, Pennsylvania’s Commonwealth Court appeared to have put the issue to rest when it ruled that the term “employee” should be interpreted to include persons who had recently been separated from employment.  Although former employees have the right to seek their own personnel files through the discovery process in the context of litigation, the Commonwealth Court’s 2016 decision made it possible for recently separated employees to immediately gain access to their personnel files without having to first file a lawsuit relating to their employment.

Recently, however, the Pennsylvania Supreme Court set aside the 2016 Commonwealth Court holding and determined that an employer properly denied a request for personnel records which was made one week after the employee’s separation.  In  Thomas Jeff Univ. No. 30 EAP 2016 (June 20, 2017), the Pennsylvania Supreme Court held that a recently terminated employee is not an “employee” under the Act and, thus, is not entitled to the Act’s personnel file inspection rights.

The Commonwealth Court had ruled that the term “current” in the context of the term “current employee” should be defined to mean “‘presently elapsing,’ ‘occurring in or existing at the present time’ or ‘most recent,'” and therefore should include a recently separated employee.  To the contrary, the Pennsylvania Supreme Court hewed to a more traditional definition of the term “current” and excluded all former employees from the purview of the Act-irrespective of how recently the employee may have been separated from employment.

Because employers are no longer required to honor requests made by former employees to access their personnel files under the Act, employers should ensure that they have policies and practices in place which guide managers and human resources personnel in responding to personnel file inspection requests made by former employees.  Even though a former employee does not have the right to access personnel files under the Act, however, former employees maintain the right to seek their personnel files pursuant to certain court rules in litigation.  If the employer is aware of a claim asserted by a former employee or suspects such a claim will be asserted, the employer must maintain and preserve those personnel files in all formats in which they are kept in the ordinary course of business.

As for employees, many employees are not even aware of their right to inspect their own personnel files, let alone do they exercise this right.  If an employee receives discipline, suspects that he or she is not being treated fairly or not compensated correctly, or believes that his or her employment is in jeopardy, the employee should consider making a request to review his or her personnel records under the Act before termination of employment prevents them from exercising their inspection rights.

The attorneys at The Law Firm of DiOrio & Sereni, LLP are experienced and available to help you. Contact Lisanne L. Mikula, Esquire at 610-565-5700, or send her an e-mail at Lmikula@dioriosereni.com.

 

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The Law Firm of DiOrio & Sereni, LLP, is located in Media, PA and serves clients in and around Media, Glen Riddle Lima, Brookhaven, Wallingford, Newtown Square, Lenni, Springfield, Swarthmore, Chester, Aston, Bryn Mawr, Morton, Woodlyn, Broomall, Gradyville, Folsom, Chester Heights, Crum Lynne, Glen Mills, Marcus Hook, Ridley Park, Drexel Hill, Marple, Bethel, Garnet Valley, Chadds Ford Concord, Chester County, Delaware County, Montgomery County, Philadelphia County.


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