Written by attorney Randy T. Enochs

Employee Rights to Personnel File

A common area employees are incredibly unaware of involves their rights to their personnel file that their employer maintains. A lot of smaller employers don't have the best record-keeping and often do not have personnel files but most established, larger employers have good records and maintain personnel files on all of their employees whether they have a human resources department or not. Often employees want to view this file and are not certain of their rights. This article will discuss those rights in Wisconsin to provide a better understanding. Wisconsin Statute section 103.13 is the exact statute that governs employee rights to their personnel file and it states:

(2) Open records. Every employer shall, upon the request of an employee, which the employer may require the employee to make in writing, permit the employee to inspect any personnel documents which are used or which have been used in determining that employee's qualifications for employment, promotion, transfer, additional compensation, termination or other disciplinary action, and medical records, except as provided in subs. (5) and (6). An employee may request all or any part of his or her records, except as provided in sub. (6). The employer shall grant at least 2 requests by an employee in a calendar year, unless otherwise provided in a collective bargaining agreement, to inspect the employee's personnel records as provided in this section. The employer shall provide the employee with the opportunity to inspect the employee's personnel records within 7 working days after the employee makes the request for inspection. The inspection shall take place at a location reasonably near the employee's place of employment and during normal working hours. If the inspection during normal working hours would require an employee to take time off from work with that employer, the employer may provide some other reasonable time for the inspection. In any case, the employer may allow the inspection to take place at a time other than working hours or at a place other than where the records are maintained if that time or place would be more convenient for the employee.

This is a rather lengthy statute section and most people who are not lawyers just want to know what this all means in a nutshell. Essentially, this means that employees can request to "inspect" their personnel file (the employer may require the request in writing) and the employer has to provide the employee with the opportunity to inspect within seven (7) working days. The employer doesn't have to provide a copy if the employee doesn't request a copy be made and the employer has a right to charge a "reasonable fee" for a copy. and merely has to allow for a "reasonable" location for the employee to view the file. However, there are exceptions to this law. Wisconsin Statute section 103.13(6) provides those exceptions:

(6) Exceptions. The right of the employee or the employee's designated representative under sub. (3) to inspect his or her personnel records does not apply to: (a) Records relating to the investigation of possible criminal offenses committed by that employee. (b) Letters of reference for that employee. (c) Any portion of a test document, except that the employee may see a cumulative total test score for either a section of the test document or for the entire test document. (d) Materials used by the employer for staff management planning, including judgments or recommendations concerning future salary increases and other wage treatments, management bonus plans, promotions and job assignments or other comments or ratings used for the employer's planning purposes. (e) Information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of the other person's privacy. (f) An employer who does not maintain any personnel records. (g) Records relevant to any other pending claim between the employer and the employee which may be discovered in a judicial proceeding.

These exceptions are rather self-explanatory but employees should be aware of them should their request be denied in whole or in part for the above reasons. Should an employer deny an employee's request or not provide the file within 7 working days as provided by the above-referenced statute, an employee may file a complaint with the Wisconsin Department of Workforce Development and that usually moves things along but the penalties for an employer violation are not that severe.

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