Sharing Personnel Files

“I’ve received a request by an attorney for a copy of an employee file. They included a very long list of things they’d like us to send them but they did provide authorization by the employee. Do I just copy the whole file and send it?”

Your HR Survival Tip

Absolutely not! A request by an attorney is not the same thing as a subpoena so different things might be allowed, plus looking through that file might result in a few surprises. If this was a court order or subpoena, you must provide everything they ask for but nothing more. You don’t have the same requirement when it’s the employee or the employee’s attorney requesting the file.

In California, most attorneys refer to DIR (Department of Industrial Relations) guidance regarding personnel files and what is considered personnel records that must be shared upon authorization or request by the employee. This list is not all-inclusive but provides the highlights:

• Anything the employee has signed because, after all, they’ve already seen it.
• The application for employment, if you use one.
• Payroll authorization forms, such as the direct deposit form, garnishments, raises, etc.
• Written documents to the employee regarding performance reviews, warnings, discipline, promotions or commendations, and termination.
• Paperwork regarding a layoff, requests for time off, and leaves of absence.
• Any documentation about the employee’s additional education, training, etc. while working for you.
• Attendance records, such as a tracking report of days off.
• If also requested, you must provide payroll records. However, this does not mean individual timecards. What you provide is a report from payroll showing the details of each check the employee has received. This is the same information found on wage statements (pay stubs) and nothing more.

Employees, or their representatives, may request to see or get a copy of their personnel or payroll records. Ask for the request in writing, especially if the employee isn’t asking you in person. You have 21 days to comply so there is no need to rush to your file cabinet. You want to review what is in that employee’s file and remove any paperwork that shouldn’t be part of the copy. Do not leave the employee alone with their file or allow them to copy it themselves… you need and want to keep control of the file.

You must retain their documentation for at least three years after termination and we’d recommend even longer. If you are keeping or storing the documentation digitally, there’s really no reason to delete old files as long as the business is in operation. Some claims can take a while to show up so having that old information may be of help someday.