The Pennsylvania Personnel Files Act (also known as the Inspection of Employment Records Law), grants employees in Pennsylvania, or their designated agents, the right to inspect certain portions of their personnel records. The Act requires employers, upon an employee’s request, to permit the employee to inspect the portions of his or her personnel file used to determine qualifications for employment, promotion, additional compensation, termination or disciplinary action. Employers must make the records available during regular business hours and may require employees to submit a written request form.
Until recently, the right to inspect records even extended to former employees within 30 days following their date of discharge pursuant to a rule adopted by the Pennsylvania Department of Labor and Industry. However, in Thomas Jefferson University Hospitals, Inc. v. Pa. Department of Labor & Industry, the Pennsylvania Supreme Court held that former employees do not have the right to inspect their personnel records.
Allowing discharged employees and their attorneys to access personnel files prior to litigation afforded them great insight into potential legal claims. This type of access to information was often used in developing a strategy for negotiations, future litigation or deciding which claims to assert. The discharged employees and their attorneys could weigh how the employer’s articulated reason for termination lined up with (or in some cases did not line up with) what the employer documented in the personnel file.
Now, because of the Supreme Court’s decision, employers can safely refuse to grant discharged employees access to their personnel files. The background behind the Supreme Court’s decision in Thomas Jefferson University Hospitals is explained below.
At the outset, a former employee filed a request, through her attorney, to view her personnel file just one week after she was discharged. The employer denied this request on the basis that the former employee was no longer employed. The former employee filed a complaint with the Department of Labor and Industry claiming that the employer wrongfully denied her request for access to her personnel file. Ultimately, the Department granted the former employee’s request to inspect her personnel file. The employer appealed to the Commonwealth Court. On January 6, 2016, the Pennsylvania Commonwealth Court issued its decision in Thomas Jefferson University Hospitals, Inc. v. Pa. Department of Labor & Industry, finding a recently discharged employee, was still an “employee” under the Personnel Files Act.
While the definition of employee under the Act (any person currently employed, laid off with reemployment rights or on a leave of absence) appears straightforward, the Commonwealth Court found that the definition did not prohibit a recently terminated individual from obtaining his or her personnel file. The Court did note that the request must be made contemporaneously with termination or within a reasonable time immediately following termination. This rationale was based on the 1996 Commonwealth Court decision in Beitman v. Department of Labor & Industry. In that case, an employee requested access to her personnel file 2 years after her employment was terminated. The majority of the Commonwealth Court found that the former employee was not permitted to access her file under the Personnel Files Act 2 years after her termination from employment. However, the Court left open the possibility that discharged employees could access their personnel file when they requested access within a reasonable time following their termination from employment.
Following the Beitman case, the Pennsylvania Department of Labor & Industry adopted a policy that provided former employees access to their personnel files so long as they made the request within a reasonable time after termination from employment, which they determined to be approximately 30 days. Because of this policy, employers were often required to provide former employees with access to their personnel files even after their termination from employment.
This was the background leading up to the Supreme Court’s decision. The Supreme Court’s full opinion can be found here.
In contrast to the Commonwealth Court, the Supreme Court took a plain language approach in interpreting the definition of “employee.” In doing so, the Supreme Court concluded that former employees who were not laid off with re-employment rights and who were not on a leave of absence, have no right to access their personnel file under the Act, regardless of how soon after termination the employee made the request. The Supreme Court also specifically overruled the Beitman decision stating that the Commonwealth Court’s holding was dicta and not controlling.
While the Supreme Court’s decision is favorable to employers, this a good time to remember the importance of including proper documentation in personnel files. A well-documented personnel file that persuasively demonstrates that an employee was discharged for legitimate, nondiscriminatory reasons will go a long way in supporting an employer’s defenses to a former employee’s legal claims. After all, while a former employee may not be able to review his or her record pursuant to the Act, he or she may be able to obtain a copy pursuant to a subpoena or discovery request in litigation.