Minnesota law imposes on all Minnesota employers with 20 or more employees very specific requirements concerning employee personnel files, referred to in the statutes as “personnel records.” The degree of regulation is interesting, considering that their use is not even mandated. (All employee rights and employer obligations flow from what the is contained in the record, “to the extent maintained by an employer.”) Naturally, there are good reasons for any employer of any size to maintain and regularly update personnel files, including documenting disciplinary infractions to justify a termination when faced with prospective or actual litigation alleging wrongful termination.
So what must be included? The list, as recited in the Minnesota Personnel Record Review and Access Act, Minn. Stat. § 181.960, subd. 4, reads in full as follows: “any application for employment; wage or salary history; notices of commendation, warning, discipline, or termination; authorization for a deduction or withholding of pay; fringe benefit information; leave records; and employment history with the employer, including salary and compensation history, job titles, dates of promotions, transfers, and other changes, attendance records, performance evaluations, and retirement record.” Among other exclusions, the statute lists reference letters, results on an employer’s test (although employee may see the cumulative number or grade), medical records, co-worker statements obtained as a part of an investigation, and perhaps most importantly, “written comments or data kept by the employee’s supervisor or an executive, administrative, or professional employee, provided the written comments or data are kept in the sole possession of the author of the record.” This latter category is sometimes referred to as a “manager’s file. It is not entirely clear from the statutory language whether employees have the right to see this information (as discussed below) if the “comments or data” are shared among managers and not kept under lock and key. That would depend on whether they could be considered a “performance evaluation,” not a defined term. The risk is that the employer would be judicially barred from using those notes at trial if a court down the road in the course of a, say discrimination or whistleblower lawsuit, where it is determined that such notes were intentionally excluded from the personnel file. Minn. Stat. § 181.963. Even then, the employer could introduce the notes into evidence if it gives the employer “a reasonable opportunity to review the omitted information” before using it. All the same, the best course of action for an employer is to follow the statute, and restrict access to manager’s files.
Minnesota law allows an employee of any Minnesota employer (not just ones with 20 or more employees) the right to inspect and obtain a free copy of his/her personnel file once every six months, and once each year after employee is separated from employment, so long as the file is maintained. Minn. Stat. § 181.961. The law prohibits retaliation against an employee who exercises his/her rights under the personnel record statute, and remedies for violation include actual damages, attorneys fees and reinstatement. The statute of limitations for bringing such a claim is very short, as compared to other Minnesota statutes of limitations: one year. Minn. Stat. § 181.9641.
Employees also have the right to dispute portions of the personnel file, and if no agreement is reached to remove such portions, submit a written statement in rebuttal of up to 5 pages. This written statement must be included in the file, and provided to any person subsequently who is given a copy of the document containing the disputed information. Many performance reviews have spaces, usually at the end, for an employee to respond in writing to portions of the review. Providing these few lines is not enough. Under a law enacted in 2007, Minnesota employers are required to provide all employees, upon hire, with a notice of rights under Minnesota’s personnel record statute. It’s doubtful that most small employer comply with this obscure provision, but the downside risk or not complying is a $5,000 civil fine and potential enforcement action by Department of Labor and Industry.
Finally, the statute protects employers from liability in two ways. First, it bars employees who neglect to formally demand the offending portions of personnel file be removed from bringing so-called compelled self-publication defamation suits (where the terminated employee conveys to a prospective employer the reason for his/her termination). Second, it bars suits based on information contained in a personnel file that the employer discloses to some third party, where the employer complies in full with the above described requirements, including providing a copy of a written rebuttal to a person receiving the disputed language. As a practical matter, it’s difficult to imagine a scenario in which this happens. Employers in the real world do not give out employee performance reviews to other prospective employers of a terminated employee. The more realistic scenario of defamation suits based on employer references was addressed by a separate employer-friendly statute in 2004, limiting defamation suits by former employees to situations in which the reference was “false and defamatory” and “employer knew or should have known the information was false and acted with malicious intent to injure the current or former employee.” Minn. Stat. § 181.967. The latter requirement of “malicious intent” makes suits against employers virtually impossible. In the legislature’s view, employers may be sloppy and wrong in their investigations of employee misconduct, so long as they lack evil intent.
There is a paucity of court decisions interpreting Minnesota’s personnel record statute, for reasons that should not be difficult to see. What injuries to an employee based simply upon an employer’s refusal to provide a copy of a personnel file would justify the expense of litigation, without more, such as a wrongful termination claim? The more realistic scenario of defamation is a non-starter, after the 2004 changes that eviscerated the personnel record statute. So if your employer fires you for stealing from the cash register, even though you didn’t, don’t be angry. It’s not personal. It’s statutory.