New Colorado Law Requires Employee Access to Personnel Files
USA June 28 2016
On June 10, 2016, Colorado Governor John Hickenlooper signed into law House Bill 16-1432. Effective January 1, 2017, the new law will require private sector employers to allow employees to access their personnel files at least once annually. The law does not apply to public sector employers (whose employees already have access to such records through the Colorado Open Records Act).
Under the new law, employers must permit current and former employees to inspect and obtain a copy of any part of their personnel files at a time convenient to both the employer and employee. A former employee may make one inspection of his or her personnel file after termination of employment. Employers may require access to personnel files to take place in the presence of a person responsible for maintaining personnel files or another employee designated by the employer. Employers are also permitted to require the employee or former employee to pay the reasonable cost of copying any part of the personnel file.
Definition of “Personnel File”
The new law includes a provision defining the term “personnel file” 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.”
Under the law, a “personnel file” does not include the following categories of documents: (1) documents required by state or federal law to be maintained in a separate file; (2) confidential reports from the employee’s previous employer; (3) documents pertaining to an active criminal investigation; (4) documents pertaining to an active disciplinary investigation; (5) documents pertaining to an active investigation by a regulatory agency; and (6) documents identifying a person who made a confidential accusation (as determined by the employer) against the employee requesting the personnel file.
What the New Law Does Not Do
The law explicitly states that it does not: (1) create a private cause of action; (2) require employers to create, maintain, or retain personnel files of employees or former employees; or (3) create any new record retention requirements. In addition, the law does not apply to financial institutions chartered and supervised under state or federal law, including banks, trust companies, savings institutions, and credit unions.
Next Steps for Employers
To prepare for the January 1, 2017 effective date of the new law, employers may want to consider taking the following actions:
- Establish a protocol for compliance with the new law.
- Educate all managers regarding the requirements of the new law and the processes by which the company will channel requests to access personnel files.
- Update employee handbooks to reference the availability of personnel file review.
- Educate appropriate staff regarding documents that should not be included in personnel files pursuant to applicable state or federal law (e.g., Forms I-9, medical information covered by the Americans with Disabilities Act, letters of reference, Equal Employment Opportunity Commission or Colorado Civil Rights Division complaints or charges, and workers’ compensation material).
- Ensure that documents excluded from the law’s definition of “personnel file” are removed from or no longer included in personnel files.
- If not already in place, consider implementing a recordkeeping policy to confirm that employment records are kept as long as legally required by state and federal record retention laws and then, if not needed for other purposes, appropriately deleted and/or destroyed.
Ogletree Deakins – Steven R. Reid and David D. Powell