Must Employers Disclose Personnel Files and Time Cards to Terminated Employees?
Questions voiced on discussion boards and open forums frequently inspire our blog posts — after all, what better way to hone in on what employers are truly seeking information on? While browsing a group discussion on LinkedIn, we came across an intriguing question from an employer wondering whether it was legally required for her to hand over time cards to a terminated employee:
“Do you know if time cards are considered part of the employee’s file to where we would have to give a terminated employee a copy, if requested? Our company allows for the employee to request a copy of his personnel file. We have a terminated employee in Colorado who is requesting a copy of his time cards for the last 4 years. Are we required to provide a copy of the time cards? We know they need to be available for a DOL audit for at least 3 years after the last entry, but can the employee request them too? The timecards are currently not physically stored with the personnel files, if that makes a difference.”
Disclosure varies by state, says Allie Petrova, a lawyer who frequently advises startup and mature businesses on employment law, business law, tax law, and M&A matters at Petrova Law.
“Time cards typically are part of an employee’s personnel file. Whether a former employee may have access to the employee’s personnel file is a matter of state law. States vary on the level of access employers are required to give employees. In some states, the employee has a right to view only records in the file that are related to a lawsuit the employee filed against the employer or former employer.”
Based on the specific nature of the lawsuit, employers are compelled to give the employee files that are relevant to the case. For instance, Petrova says, if an employee was terminated due to tardiness in an employer-friendly state, the employer likely would be required to give employees copies of their time card.
However, in many states the employee has the right to review the contents of the personnel file, “or at least some of the records in the file” without filing a lawsuit. “For example, in California, a current or former employee has right to inspect any personnel records relating to the employee’s performance or to a grievance proceeding,” says Petrova.
Regarding the state of Colorado specifically, effective January 1, 2017, employers are required to grant employees access to their personnel files upon request (see House Bill 16-1432).
“This law allows former employees in Colorado the right to inspect their personnel files one time after termination of employment,” explains Petrova. “The employer must make the personnel file available at its place of business at a mutually convenient time. Before January 1, 2017, most employees did not have access to their personnel file. The relevant law is Colo. Rev. Stat. Ann. § 8-2-129.”
Thanks to Allie Petrova for lending her expertise to answer this great question. Have you got a question that needs answering? Send it in at email@example.com and we’ll do our best to get all the facts for you.