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A growing number of employees are requesting access to their personnel files, which has employers smelling legal trouble and their attorneys sounding warnings. Attorneys are telling employers to keep accurate and detailed personnel records, or risk losing a lawsuit. Labor and employment attorneys say that, in recent years, it has become increasingly crucial for employers to maintain detailed personnel files given the rising demand for them. Lawyers cite several reasons for the uptick in such requests: A bad economy is creating more layoffs and terminations, which has employees more closely scrutinizing their personnel files and challenging terminations; people switch jobs more often now and want to know if anything in their file will help them or hurt them in another job; and several legislative efforts have been made to give employees wider access to their personnel files. All this activity has employers nervous, particularly those that aren’t savvy about the law and don’t know what to keep, and what not to keep, in a personnel file. “This is a growing problem,” said Robert C. Boisvert Jr., an attorney at Fredrikson & Byron in Minneapolis. Boisvert added that employers often have trouble defending workplace decisions because of poor, or nonexistent, personnel files. “Small employers fall prey to this the most because they don’t have an H.R. staff, and it’s not easy to know all the laws if you’re a small employer,” said Boisvert, who advises employers on how to keep good personnel records. He noted that plaintiffs’ lawyers have long requested personnel files during discovery; what’s changed now is that employees are asking for them directly. Currently, 35 states and the District of Columbia have laws that govern employee access to personnel files, according to the Society for Human Resource Management, a Virginia-based association for human resources management. States with no laws guaranteeing personnel-file access include Alabama, Florida, Georgia, Montana, New Jersey and New York. On the legislative front, Minnesota recently passed a bill that requires employers to notify all new hires of their rights to access their personnel files upon request. Louisiana last year passed a bill that gives school employees full access to their personnel file and the right to rebut information in the file that resulted in personnel action. California has a bill pending that would require an employer to furnish personnel files within 21 days of a request and keep such files for four years after an employee’s termination. Failure to comply could result in a $750 penalty. Lawyers note that there is no federal law that requires employers to give employees access to their personnel files. State laws that govern this access vary, with some allowing rebuttals and copying privileges, while others permit only the right to see the file. Meanwhile, labor and employment attorneys say personnel files are a legal land mine for employers. Defamatory information could lead to a defamation suit. Personal information such as age, race, sex or medical information could lead to a discrimination suit. Poor documentation � or none at all � could sway a jury that there’s no proof of bad performance in a wrongful termination suit. “Sometimes the fact that something is not documented is more of a red flag to people than what is documented,” said Jill Fisher, who chairs the employment law practice group at Zarwin • Baum • DeVito • Kaplan • Schaer • Toddy in Philadelphia. “For example, if you get fired for poor sales, and the employer says, ‘Well, we’ve counseled the employee several times and she didn’t listen,’ and there’s nothing in the personnel file, then the jurors are increasingly unlikely to believe the employer.” Fisher said that, too often, managers will complain that they don’t have time to keep detailed personnel records. “My response is basically, ‘It’s your protection.’ “ Denying employees access to their personnel files can also backfire on an employer, even in states where it’s not mandatory, cautioned Roger Brice, an employment lawyer in the Chicago office of Sonnenschein Nath & Rosenthal. Brice noted that, in the event of a lawsuit, an employer might not be able to use the file to defend itself if it has denied that file to the employee.

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