Understanding employee access to records: the 50-state puzzle

The right of an employee to access their personnel records—often referred to as their “personnel file”— is vital for confirming record accuracy and ensuring fairness in the workplace. These records, which typically contain performance reviews, disciplinary actions, compensation history, and employment agreements, are critical documents that affect an individual’s career path. However, in the United States, the right to access these files is not guaranteed by a universal federal law. Instead, it exists as a complex and ever-changing patchwork of state laws, forcing employers in multiple states to carefully manage their compliance.

The legal framework governing employee records access

On the federal level, there is no single law that grants private-sector employees the general right to inspect their entire personnel file. Federal statutes like the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) do impose specific recordkeeping requirements, and they mandate that certain documents, such as medical information, be kept separate and confidential. Employees also must be able to access records related to workplace injuries as required by the Occupational Safety and Health Administration (OSHA). Beyond these specific mandates, the general right to view one’s own personnel file or records is determined exclusively by state, and sometimes local, legislation.

State laws that grant employee access to personnel files allow workers to verify the accuracy of the information used by an employer to make critical decisions about their employment, such as promotions, disciplinary action, or termination. Providing employees the ability to review and submit a rebuttal to entries in their personnel file is a strategic risk-management practice for the employer. This transparency ensures all documentation is accurate and proactively strengthens the company’s defense against potential legal claims.

The evolving state landscape: recent legislative changes

While many states have long-standing laws on personnel file access, the trend is toward greater employee rights. Recent years have seen significant amendments and new laws introduced in several states, often focusing on increased clarity and stricter compliance timelines for employers.

For example, states like Illinois have recently enacted amendments that clarify the definition of a “personnel record,” broadening it to include documents like employee handbooks and all employment-related contracts. These types of amendments also frequently refine the process for making a valid request, which now includes electronic communications such as email or text messages.

Similarly, the state of Washington has recently updated its law to explicitly define a personnel file and impose a strict 21-calendar-day deadline for employers to produce the requested file, moving away from the more ambiguous standard of a “reasonable time.” Washington, as well as other states’ amendments, have introduced new penalties, including statutory damages and an employee’s right to recover attorney’s fees.

Navigating the multi-state maze

Because the rules for employee records access vary significantly across state lines, employers in multiple jurisdictions face a major compliance hurdle. Given this reality, an employer cannot apply a single, uniform policy across the country and must customize their record access policy for each state.

The key differences in state laws revolve around four basic areas:

• Scope of coverage: Some states, like California and Michigan, grant access rights to both current and former employees. Others, such as Texas, have no personnel file access law for private employees at all. Additionally, the definition of what constitutes a “personnel file” is not uniform.
• Frequency and process: The frequency with which an employee can request their file varies significantly, from “at reasonable intervals” to specific limits like two or three times per year. The employer’s deadline for providing the records also differs widely, from as little as seven business days in some states to as much as 30 or even 45 days in others.
• Copying and cost: Many states mandate that the employer provide a copy of the records to the employee, often for a reasonable cost, but a few require the first copy to be provided free of charge. In nearly all cases, the inspection must occur at a reasonable time and location, sometimes requiring an employer representative to be present.
• Remedies and penalties: The potential consequences for a violation are increasingly severe. While some states allow an employee to compel access via court order, others now impose substantial fines and attorney fees (e.g., Washington, California, Virginia, and Illinois).

Final takeaways on records access

In summary, state laws governing employee records access are a dynamic area of employment law that is moving toward greater protection for the worker. For any organization, especially those with employees in different states, adhering to the most protective law for each location is essential. As a best practice, employers should have a written employee records access policy that is regularly audited against the latest state legislation, ensuring that the company’s internal practices meet the compliance standards for their state.