If you ever feel that your rights have been violated by an employer or think you may need to consider legal action against a current or former employer, it may be important for you to obtain your personnel files. Those files may contain information that helps you prove discrimination, harassment, or other civil rights violations. It could also help you prove that the reasons an employer has provided for adverse employment action against you are untrue. Employers should not make it difficult for you to get that kind of information. While there is no federal law requiring employers to give employees access to personnel files, Colorado does have a law that affords you a right to obtain your personnel file.
In 2016, Colorado passed House Bill 16-1432 that requires private sector employers to allow current employees access to their personnel files once a year, and former employees one-time access after leaving employment. (If you are a public employee, you are already allowed access to your personnel files through the Colorado Open Records Act.)
C.R.S. § 8-2-129, provides, in part:
“Every employer shall, at least annually, upon the request of an employee, permit that employee to inspect and obtain a copy of any part of his or her own personnel file or files at the employer’s office and at a time convenient to both the employer and the employee. A former employee may make one inspection of his or her personnel file after termination of employment. An employer may restrict the employee’s or former employee’s access to his or her files to be only in the presence of a person responsible for managing personnel data on behalf of the employer or another employee designated by the employer. The employer may require the employee or former employee to pay the reasonable cost of duplication of documents.”
It should be noted that this law doesn’t apply to financial institutions chartered and supervised under state or federal law, such as banks, trust companies, savings institutions, and credit unions.
What exactly are personnel files?
The term personnel file is defined in this law as “the personnel records of an employee … that are used or have been used to determine the employee’s qualifications for employment, promotion, additional compensation, or employment termination or other disciplinary action.”
However, it does not include all records. Pursuant to the law, your employer is not required to give you access to the following documents:
- Documents required by state or federal law to be maintained in a separate file (such as medical or FLMA documents)
- Confidential reports from the employee’s previous employer
- Documents pertaining to an active criminal investigation
- Documents pertaining to an active disciplinary investigation
- Documents pertaining to an active investigation by a regulatory agency
- Documents identifying a person who made a confidential accusation (as determined by the employer) against the employee requesting the personnel files.
Is my employer required to create or keep these files?
Not necessarily. The new law does not require employers to create or maintain records that they do not already keep in the course of running their business. Some employers may not do performance reviews or keep anything but basic contact and tax information on their employees, as a matter of practice. This law does not require them to change those practices. The statute does not do any of the following:
- Create a private cause of action, (meaning it does not create a new way for you to sue)
- Require employers to create, maintain, or retain personnel files of employees or former employees
- Create any new record retention requirements.
Since this particular law does not require employers to retain any personnel files, it is imperative that you request them as soon as possible. While most companies already have their own policies in place regarding the retention of records (and institutions may be penalized for not retaining records once they are put on notice that litigation is imminent), it is often necessary to review your personnel records to know whether you have a good case or whether litigation is in your best interest. Either way, it is a good practice to review your personnel files after leaving a job.
If you are a current employee — regardless of whether you have any issues at work or not — it’s good practice to review your performance reviews and similar files (promotions, transfers, demotions, etc.). If you are ever written up or have an incident with another employee (unless confidential), request copies of those documents as well. Finally, if your employer has done something to make you think your rights have been violated, let them know — preferably in writing (so that there is a record of your concern). It would be a violation of your rights for them to retaliate against you for this. This could trigger the responsibility for your employer to retain all related records (not just personnel records).
How do I get access to my personnel files?
You ask for them. However, while an employer is required to give you access upon request, you cannot expect an employer to drop everything and provide you this kind of information, at any time, unannounced. An employer may take a reasonable amount of time to respond to a request. The best thing to do is contact them by email so you have a record of all communication. If the employer has a human resources department, contact them first. If there is no HR department, then email your supervisor and/or a person whom you believe has control over personnel files. Many employers have a specific form to fill out for access to your files. Once they send the form to you, return it to them by email/fax (if possible) so that you again have a record of it. If you fill it out on a website, see if there is an option to print the form so you have a record of submitting it.
It is always a good practice to create a paper trail if anything you do might be questioned or otherwise might become evidence in a lawsuit. If you are involved in any kind of dispute with your employer, keep a record of everything. Sometimes you must be the one to document issues, record conversations, or otherwise gather evidence necessary for an attorney to advocate for you later.
Additional details set forth by this law, include:
- Current employees can request copies of personnel files at least annually and an ex-employee can request access to their files once after termination of employment
- The inspection and copying shall occur at the employer’s office.
- The inspection must be at a time that is convenient to both the employee and employer.
- The employer can require the inspection to occur in the presence of another person designated by the employer.
- The employer may require the employee to pay the reasonable costs of duplication of documents.
If the employer refuses to give you access to your personnel files, file a complaint with the Colorado Department of Labor.
What if I disagree with what’s in my personnel files?
If you disagree with something in a performance review or an action taken by your employer, such a disciplinary action, you have the right to submit a response to be included in your personnel file. This does not imply any agreement on their part, but you and the employer may, obviously, see things differently. An employer should keep this as part of the records related to issue that prompted your response. Again, it is always a good idea to put everything in writing so that there’s a record of it
Finding the best civil rights attorney when you have a dispute with an employer
If you have been the victim of discrimination, retaliation, or harassment from an employer, you have rights. But it is important to act quickly because certain legal or regulatory deadlines may apply and many claims have a statute of limitations. Call the Civil Rights Litigation Group at 720-515-6165, or use our online contact form, to schedule your free consultation with us today. We’ll aggressively fight for you in court and make sure your rights are protected and you are treated fairly.
