You Have The Right To Gain Access To Your Personnel Records
By Attorney Kira E. Loehr
Cullen, Weston, Pines & Bach LLP
Questions and Answers:
I’d like to know what is in my personnel records at work. May I see them?
Yes. Wisconsin Statute § 103.13 requires employers to allow you access to records that your employer keeps about you, subject to certain enumerated exceptions. The records to which you may have access include “any personnel documents which are used or which have been used in determining that employee’s qualifications for employment, promotion, transfer, additional compensation, termination or other disciplinary action, and medical records, subject to exceptions discussed below.” Wis. Stat. § 103.13(2). As you can tell, this definition may include more than the contents of that which your employer calls your official personnel file. If your employer used documents to determine your eligibility for a promotion, a raise, or to decide whether to discipline you, you should be able to inspect and copy these documents, whether or not they were ever placed in any specific file. The statute does not use the word “file” at all.
I no longer work for the employer; can I still get my personnel records from them?
Yes. The statute applies to both current and former employees. Wis. Stat. § 103.13(1).
How can I view my personnel records?
First, you must request access to your records. You may choose whether you would like to inspect your records, whether you would like to receive a copy of your records, or whether you would like both an inspection and a copy. The right to inspect the records includes, by law, the right to obtain copies of them for your own files. Wis. Stat. Sec. § 103.13(7). Your employer may charge you a reasonable fee for providing the copies that you request. That fee may not exceed the actual cost of production. The employer cannot charge you a fee for inspection of your records.
Some employers require that the request to inspect and copy your records be in writing and others do not. To enable you to document when you made your request, we recommend that you make your request in writing regardless of what the employer’s procedure may be. A sample letter requesting inspection could say, “I am writing to request the opportunity to inspect and copy the records of my employment pursuant to Wis. Stat. § 103.13” Subject to certain exceptions, the employer must then provide you with that opportunity to inspect your personnel records.
You may request copies of all or any portion of your records. You, or your representative, may inspect your records, by law, at least two times a calendar year, unless your particular collective bargaining agreement provides for more frequent inspections. Your employer must allow you to inspect your documents, or provide you with a copy of them, within seven working days of your request. The employer must provide you with the opportunity to inspect your records at a location reasonably near your place of employment and during normal working hours. If you would have to take time off from work in order to inspect your records during normal working hours, your employer may provide some other reasonable time for the inspection. If it would be more convenient for you, the inspection can take place at a time other than normal working hours or a place other than where the records are normally maintained. Wis. Stat. § 103.13(2).
I am involved in a union grievance against my employer. Can I get my union representative to look at my records for me?
Yes. If you are currently involved in a grievance, you can designate your union representative, another member of your collective bargaining unit, or another representative of your choosing to review your records. You must designate your representative in writing in order for the person you choose to be allowed to inspect, or receive a copy, of your personnel records. Your designated representative will be allowed the same access that you would be allowed if you were inspecting the records yourself, including access to documents that may have a bearing on the resolution of the grievance, subject to certain exceptions. Wis. Stat. § 103.13(3).
What are the exceptions to my right to inspect my personnel records?
Outside of the area of medical documents (which has its own specific restrictions) there are seven statutory exceptions limiting your right to access your record. Your right to inspect, or receive a copy of, your record does NOT apply to:
1. Records relating to the investigation of possible criminal offenses committed by you;
2. Letters of reference for you;
3. Any portion of a test document, except that you may see your cumulative total score for either a section of the test or for the entire test. [An unpublished decision of the court of appeals suggests that an individual may also be allowed to access his or her multiple-choice answer sheet, but not the test questions, to determine whether the sheet was graded correctly. McCoy v. Board of Police and Fire Commissioner for the City of Milwaukee, 205 Wis. 2d 112, 555 N.W.2d 410 1996 WL 515636 (Wis. App. 1996). This unpublished decision under the open records law gives some indication as to how a court might rule, in future cases, although it cannot be cited as precedent.]
4. Certain materials used by your employer for staff management planning.
5. Information of a personal nature about a person other than you, if disclosure of the information would constitute a clearly unwarranted invasion of the other person’s privacy;
6. An employer who does not maintain any personnel records; and
7. Records relevant to any other pending claim between the employer and the employee which may be discovered in a judicial proceeding. Wis. Stat. § 103.13(6).
What are the specific restrictions for medical records?
The right of you or your designated representative to inspect your personnel records includes the right to inspect any personal medical records concerning you held by your employer. However, if the employer believes that disclosure of those records would have a harmful effect on you, the employer may release the records to your physician, or through a physician designated by you, in which case the physician may release the records to you or to your immediate family. Wis. Stat. § 103.13(5).
What should I do if I’ve seen my records and I disagree with some of the information contained in them?
If you disagree with any information contained in your personnel records, you should first try communicating with your employer about the disagreement. You and your employer may be able to agree to remove or correct the disputed information. If you cannot reach an agreement with your employer, you may submit a written statement explaining your position to your employer. The employer must then attach that statement to the disputed portion of your personnel records and, most important, your written statement must be included whenever the disputed portion of your records is released to a third party as long as the disputed portion is a part of the records. Wis. Stat.§ 103.13(4).
Can my employer fire me because I requested access to my records?
No. It is an act of employment discrimination for your employer to discipline or terminate you because you sought access to your employment record. Wis. Stat. § 103.13(7m).
Are there any penalties if my employer refuses to let me see my records?
Yes. Any employer who violates any of the provisions mentioned in the statute may be fined not less than $10 nor more than $100 for each violation. Wis. Stat. § 103.13(8). To enable enforcement of your rights, your written request to inspect or copy your records helps to document that you made the request, what it was that you requested, and when. This is the reason we recommend that you make your request in writing.
What should I do if I request to inspect and copy my personnel records, but my employer delays or does not produce them?
You may file a complaint with the State of Wisconsin, Department of Workforce Development, to enforce your right to inspect and copy your personnel records.
Do I get the money from the penalties described above if my employer violates this section?
No. Wis. Stats. § 103.13(8) does not create a private right of action for employees if an employer violates this section. If the employer does not comply, it will be liable to the state for a forfeiture in the amounts described above.