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Access to Your Personnel File
Under state law known as the Bullard Plawecki Employee Right-to-Know Act, Michigan employees have the right to review and obtain copies of their personnel file twice each year. This law also entitles employees the right to submit a written rebuttal when they disagree with information contained in their file and to be notified when “disciplinary letters” are shared with an outside third party.
These rights are further expanded by Article XXV in the collective bargaining agreement which gives access to “Post-employment” files within 5 working days of a request.
How may an employee request to see his or her personnel file?
Under Bullard Plawecki an employee who wishes to review his or her file must make a written request to the employer. See sample letter in .pdf.
How often may an employee see his or her personnel file?
Under Bullard Plawecki an employee may ask to see his or her personnel file at reasonable intervals, generally not more than two times in a calendar year. Under the union contract there are no such limitations.
How can an employee obtain a copy of his or her file?
After looking at the file, an employee may obtain a copy of any or all information contained in the file by simply requesting it from the unit administrator. If the employee is unable to review his or her personnel record, he or she must demonstrate this inability to the employer, and then make a written request to the employer that a copy of the information in the personnel file be mailed to him or her.
Can an employer charge a fee for providing a copy of a personnel file?
Yes. An employer may charge a fee for providing a copy of all or part of the information contained in the personnel file, but the fee shall be limited to the employer's actual cost of duplication the information.
What if an employee disagrees with information in the file?
If the employee disagrees with information contained in a personnel file, removal or correction of that information may be mutually agreed upon by the employer and the employee. If such an agreement cannot be reached, the employee may submit a written statement explaining his or her position, which will become a permanent part of the file. The law allows a statement of up to five sheets of eight and one half inch paper to be added to the file. It must be included whenever the file is divulged to a third party.
What are personnel records and what are not?
Basically, the Act defines personnel records as information identifying an employee which is kept by an employer and which is used to determine an employee's qualifications for employment, promotions, transfers, additional compensation, or disciplinary information. The law does not require the following information to be open for review as a part of the personnel record:
* Employee references supplied to an employer that would reveal the identity of the person making the reference.
* Materials which disclose an employer's staff planning regarding more than 1 employee, including salary increases, management bonus plans, promotions, and job assignments. Such materials relating only to the employee concerned are required to be a part of the file, however.
* Medical reports and records in an employer's possession if the information is available to the employee from other sources.
* Personal information concerning someone other than the employee if disclosure would be a clearly unwarranted invasion of the other person's privacy.
* Information concerning the employee relative to a criminal investigation, and kept apart from other records.
* Records limited to grievance investigations which are kept separately and are not used to determine an employee's qualifications for employment, promotions, transfer, additional compensation, or disciplinary action.
* Records maintained by an educational institution concerning a student which are considered educational records according to the Federal Family Educational Rights and Privacy Act.
* Notes kept by an executive, administrative, or professional employee which remain solely in the possession of the maker of the record, and are not seen by anyone else. However, a note concerning an occurrence or fact about an employee may be entered into the personnel file up to six months after the date of the occurrence or the date the fact becomes know. After this time, the information may not become part of the personnel file.
All other records kept and used by an employer in determining an employee's qualifications for employment, promotions, transfers, additional compensation, or disciplinary action must be available to the employee for review.
Can an employer collect information about an employee's nonemployment activities?
No. An employer is strictly prohibited from gathering and keeping records of an employee's associations, political activities, publications, or communication of nonemployment activities unless the employee gives written authorization allowing the collection and retention of such information. If such authorization is given, any record kept by the employer, such as professional association memberships or a list of published articles or books, becomes part of the personnel file.
Must an employer notify an employee when divulging personnel record information to a third party?
Normally, the employer does not have to notify the employee when transmitting personnel records to a third party who is not a part of the employer's organization or a member of a labor organization representing the employee. In the case of disciplinary reports, letters of reprimand or other reports of disciplinary action, however, an employer or former employer must give written notice to the employee when divulging the information to third parties. Such notice must be mailed on or before the day the information is transmitted. Notification is not required when:
* The employee has waived written notice as part of a written, signed employment application with another employer.
* The disclosure is ordered in a legal action or arbitration to a person involved in that legal action or arbitration.
* Information is requested by a government agency because of a claim or complaint by an employee.
Can outdated disciplinary reports be released?
Employers must review information in personnel files before releasing any material and may not transmit to a third party disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than four years old, except when ordered to do so in a legal action or arbitration.
What are the legal remedies for the violation of this Act? (Section 11)
If an employer fails or refuses to follow this Act, the union can file a grievance under citing violation of Bullard Plawecki as well as Article XXV.
An employee can also bring an action for compliance in a circuit court. The court can issue an order enjoining the employer to comply with the Act. In addition, the employer's penalty for violation of the Act is actual damages plus costs. For a willful and knowing violation of the Act, the penalty is $200 minimum damages plus costs, reasonable attorney's fees and actual damages.
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