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Legal Insider: Are Employees Entitled to their Personnel Files?

by ARLnow.com Sponsor February 23, 2015 at 2:30 pm 0

Berry&Berry2

This is a biweekly sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm that specializes in federal employee, security clearance, retirement and private sector employee matters.

Many current and former employees often wonder whether they have the right to review or obtain a copy of their personnel files. As a general rule, private sector employees in the Commonwealth of Virginia are not entitled to review or obtain a copy of their personnel files from an employer.

Private Sector Personnel Files

Each state has its own laws and regulations concerning the personnel files of private sector employees. Virginia, the District of Columbia, and Maryland currently do not have statutes that require private sector employers to provide an employee with a copy of or the ability to review his or her personnel file. Some states, such as California, Michigan, and Connecticut, have passed laws requiring that employees have access to their personnel files. The national trend is moving toward legislatures requiring employers to provide current and former employees access to their personnel files. Some states require that a copy of such files be made available to an employee or former employee at a nominal cost. Unionized private sector employees may have additional rights to review or obtain a copy of their personnel files depending on collective bargaining agreements in place between a union and an employer.

Public and Federal Sector Personnel Files

Public sector employees are governed by different county, state, and federal laws. Federal employees generally have the right to obtain a copy of their personnel files through the Privacy Act of 1974, 5 U.S.C. § 552a. Virginia public sector (state or county) employees have the right to review their personnel files under Va. Code 2.2-3705.1 and Va. Code 2.2-3705.5. Additionally, if a personnel matter goes to court, an employee will typically be able to obtain a copy of his or her personnel file through litigation procedures.

Advice to Private Sector Employees and Employers

If employees do not have a statutory or other right to obtain a copy of their personnel files, we advise that they still request the ability to review it. Even though employers may not have a formal policy on reviewing personnel files, human resources will often grant an employee’s request to review his or her personnel file. Sometimes there are restrictions on copying the personnel file or other safeguards. We generally advise employers to consider allowing employees, under certain conditions, the ability to review their personnel files even if it is not required by law. This often has a positive effect on workplace morale and helps to limit suspicion within the workplace. Such a policy also gives an employer the ability to clearly document that an employee has been put on notice or received prior disciplinary or performance counseling. Whatever policy is adopted by an employer, it should be applied consistently to all employees.

Please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation if you need legal assistance regarding an employment matter. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

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