Employee Personnel Records: To Disclose, or Not To Disclose? That is the Question…

Contributed by Carly Zuba

As most employers likely know, it is very important to maintain an accurate personnel file for each and every employee.  However, most employers may not know that these personnel records are subject to review and copy by employees under a little something called the Illinois Personnel Records Review Act.  This Act requires all employers who maintain five or more employees to, upon an employee’s request, permit the employee to inspect and/or copy his or her personnel documents up to two times per calendar year.  Such inspections are to be permitted within seven working days of the request at a location “reasonably near” the employee’s place of employment.

So, what exactly is meant by the term “personnel records?”  “Personnel records” is broadly defined by the Act – it includes documents which are, have been, or are intended to be used in determining “an employee’s qualifications for employment, promotion, transfer, additional compensation, discharge or other disciplinary action.”  This definition encompasses not only the official personnel file maintained by the HR department, but also includes any notes or documents which are kept under separate cover in, say, supervisory files.

Are there any exclusions or exceptions to this law?  Indeed! The following records are specifically excluded from the inspection requirements: (1) letters of reference; (2) test documents; (3) materials used for staff management planning, such as matters relating to the business’s development, expansion, closing or operational goals, where the materials relate to or affect more than one employee however, this exception does not apply if such materials are, have been or are intended to be used by the employer in determining an individual employee’s qualifications for employment, promotion, transfer, discipline, discharge, etc.; (4) information of a personal nature about another person if the disclosure would constitute a clear invasion of privacy; (5) records relevant to an existing claim between the employer and employee which may be discovered in a judicial proceeding; and (6) records that involve employer investigations/security files where it is reasonable to believe that damage to an employer’s business or property or other financial interest may result from disclosure. 

Take-away for employers:  Ensure that you understand the requirements of this Act, as courts are authorized to award $200 plus costs, reasonable attorneys’ fees, and actual damages for a willful and knowing violation of the Act.  Additionally, if there are documents that should have been disclosed to the employee under the Act but were not, those documents cannot later be used by the employer in a judicial or quasi-judicial proceeding.  As always, it is advisable to consult with an experienced labor and employment attorney if you have any questions about a specific personnel records request under this Act.