Access to records law reviewed

Since July 1, 1984, Illinois has joined 11 other states in granting employees a statutory right to review their personnel records. This new law not only allows employees to include written statements of objection to materials in their personnel file, but also restricts the type of materials an employer may place in the file. An employer failing to comply with the Employee Access to Personnel Records Law can be found in contempt of court and fined $200 plus court costs, attorney's fees and any actual damages to the employee.

By Michael A. Donahue

At the time this law was to be signed by Governor Thompson last summer, many business groups statewide worked very hard to arrive at compromises that would be palatable to employers. The Governor incorporated some of the suggestions into the bill (HB 2035). Now, the good and bad points of this law are resurfacing for inspection. Many employers are just beginning to understand the ramifications of the Employee Access to Personnel Records Law. A greater majority may remain ignorant about a number of very technical requirements and penalties that could prove disastrous to an unsuspecting employer.

Be Our Guest

The majority of people in the business community do not object to giving employees access to their personnel records. This is a fair request and one that almost every top-level manager or business owner can oblige. In fact, prior to the passage of HB 2035 (now PA 83-1104), there was absolutely nothing preventing employees and employers from striking their own unique compromises regarding this access. Many business owners and top-level managers wonder if singular collective bargaining agreements allowing employees access to their personnel files would work better than the new law. Individual companies could then tailor the provisions to best suit both the employer and employee based on the company's particular internal situation. However, business owners are not aware of any situations where collective bargaining agreements attempted to compromise on this issue. Instead, organized labor groups opted for a "generic" law which, in many cases, is not as effective as an individual collective bargaining agreement could be for either an employee or employer. The business community does not believe this new statute is a fair access plan when considering the most effective process that would allow employees limited access to their personnel records and still keep within the justifiable boundaries of corporate security, normal personnel department workloads, free exchange of reference information, and records essential to outside criminal or other types of investigations. The following is a summary of the business community's major problems with the Employee Access to Personnel Records Law.

One of the most basic, and perhaps most problematic issues, in the new statute is found almost at the end in Section 10 titled "Exceptions." It states that "the right of the employee or the employee's designated representative to inspect his or her personnel records does not apply to (e) an employer who does not maintain any personnel records." Thus, an employer who has never kept personnel records is not required to begin keeping them. Moreover, the law does not define exactly what constitutes a personnel record even though both "employee" and "employer" are clearly defined in Section 1.

Section I (a) of the statute defines "employee" as a "person currently employed or subject to recall after layoff or leave of absence with the right to return to a position, or a former employee who has terminated service within the preceding year." Most states having an access to records law provide access only for current employees and those subject to recall after layoff or leave of absence. Illinois law, however, includes former employees who have been previously terminated up to one year. This provision fails to take into consideration the length of time that an employee stayed at the firm and his/her relationship to the firm.

Section I (b) defines "employer" as "any public or private entity which has one or more employees." The inclusion of the "one or more employees" phrase ignores the predicament of most small businesses. In Illinois alone 59 percent or 152,590 businesses employ five or fewer employees. Most small business owners also perform many tasks — payroll, personnel, inventory, accounting, research and development, public relations and advertising — themselves. This law could, conceivably, force small business owners to hire full- or part-time personnel officers. Also, many small business owners hire family members and friends and usually enjoy positive relationships with these people. This law might create an unnecessary adversarial relationship between employee and employer where none previously existed.

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During the 1984 legislative session, NFIB/Illinois drafted HB 2950, which currently awaits the Governor's signature. This bill was designed to exempt small business owners with five or fewer full-time employees from the Access to Personnel Records Law. The employer's children and immediate family members would be excluded from the count. The business groups supporting HB 2950 feel it will eliminate unnecessary regulatory burdens that penalize small employers for reasons not germane to their operations.

Section 2 permits the employee to inspect any personnel records that "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." Actually defining which employee records "are, have been, or are intended to be used.. . ."is a monumental task that ignores the common practice of employers not including in the personnel records minor warnings to the employee made at the workplace or samples of deficiencies in the employee's work. These types of things are well-known to the employer, but often should be overlooked as articles on which to base major decisions. This provision could also result in more harm than good to employees, especially if such documentation is to be taken into account when considering promotions, raises, etc.

Section 4 stipulates that personnel information which was not included in the personnel records, but should have been, cannot be used by the employer in judicial or quasi-judicial proceedings. A simple error on the part of the employer, who may forget to put a particular piece of information in an employee's file, could be viewed as intentional nondisclosure by an arbitrator or a judge. An employer could then be seriously handicapped in defending him/herself if this information was found to be "intentionally" withheld. However, material which should have been included, but was not, can be used at the request of the employee.

Section 7 states that "an employer or former employer may not divulge a disciplinary report, letter of reprimand, or other disciplinary action to a third party without written notice beforehand to the employee if that third party is not part of the employer's organization or if the third party is not part of a labor organization representing the employee." The wording of this section neglects to address the possibility of an employee being employed within a controlled group of companies, but transferred to a subsidiary or related company. The exchange of information between two parties such as these would be greatly impeded, especially if the new employer was unable to reach the employee and wanted only to verify an address, etc. Even if the third party is not a related company, such written procedure blocks simple reference checking, which is usually an informal call from a prospective to a previous employer. Either way, written notifications for all possible information requested would slow down normal personnel processing routines and increase costs.

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Section 8 requires an employer to delete disciplinary records, letters of reprimand or other records of disciplinary action which are more than four-years-old. The four-year limit seems unreasonable when one considers the great amount of information exchanged on an employee's conduct. In other cases, information from businesses employing a person prior to the past four years may provide needed substantiation of the employee's skills. In these cases, information of more than four years past on the employee could be of great value to the third party requesting it. This provision also overlooks the fact that information may remain relevant, such as determining if an employee is engaged in a recurring pattern of activity, either criminal or otherwise.

Section 9 restricts an employer from "gathering and keeping an employee's associations, political activities, publications, communications, or non-employment activities" (including outside criminal conduct). The Sept. 16,1983 issue of Crain's Chicago Business lists one such example of this in a recent Maryland court case when an employer could not adequately check an employee's background. In this particular case, a furniture mover — previously on probation for armed robbery and with a record of conviction for deviate sexual offenses — was admitted to a private residence, where he raped and killed the occupant. The employer was held liable partially on the grounds of inadequate background information.

Section 10 deals with exceptions to the employee's rights to inspect his/her personnel records. Specifically, Section (c) states that "materials used by the employer for management planning including but not limited to judgments, external peer review documents 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" may be withheld from employee inspection. It is important to note that Section 10 (c) and Section 2 directly conflict as to what records can be withheld from the employee and what records must be shown. Section 2 includes in the definition of "open records" any personnel documents relevant to promotions, transfers, or additional compensation — exactly what is found in Section 10 entitled "Exceptions" (to the open records definitions). The ambiguous overlap between these two provisions is a potential threat to an employer. It is quite likely, too, that the courts would interpret the definitions of these provisions narrowly and in favor of the employee's right to access in any resulting law suit, mainly because of the remedial nature of this statute.

ABOUT THE AUTHOR:

Michael A. Donahue is the director of governmental relations for the National Federation of Independent Business/Illinois.

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