Minnesota statutorily imposes on employers detailed requirements concerning the contents of employee personnel files, referred to in the law as “personnel records.” The Minnesota Personnel Record Review and Access Act’s (“MPRRAA”) degree of regulation is surprising, given there’s no requirement personnel files be kept in the first place. It applies to personnel files only “to the extent maintained by an employer” having 20 or more employees. Naturally, there are good reasons for an employer of any size to keep and regularly update employee personnel files, to facilitate smooth functioning of the workplace and reduce the risk of losing in court if sued for wrongful termination.
What must be included in my personnel file?
So, what documents and information must be included in an employer’s personnel file? The MPRRAA lists them 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.” Minn. Stat. § 181.960, subd. 4.
What may be excluded from my personnel file?
The MPRRAA excludes an equally long list of documents, which may be excluded from the file, and therefore off-limits to an employee’s review (as discussed below). Nothing in the law requires they must be excluded. The list of exclusions includes reference letters, medical records, co-worker statements obtained as a part of an investigation, and results on an employer’s test (although an employee may see the cumulative number or grade). Perhaps the most important exclusion is “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.” HR professionals sometimes refer to these comments or data as a manager’s file, although that term exists nowhere in the statute.
What rights do I have to inspect my personnel file?
The MPRRAA allows an employee of any Minnesota employer—not just ones with 20 or more employees—the right upon written request to inspect and obtain a free copy of the employee’s personnel file once every six months, and once each year after the employee is separated from employment, for as long as the employer maintains the file. Minn. Stat. § 181.961, subd. 1. The employer has 7 business days in which to provide the file, 14 if the file is located outside of the state. Minn. Stat. § 181.961, subd. 2. The law prohibits retaliation against an employee who exercises his/her rights under the personnel record statute, and remedies for violation include actual damages, attorney’s fees and reinstatement. Minn. Stat. § 181.965, subd. 1. The statute of limitations for bringing such a claim is very short, as compared to other Minnesota statutes of limitations: one year. Minn. Stat. § 181.965, subd. 2.
Can I remove documents in my personnel file?
The MPRRAA gives employees the right to dispute portions of their personnel file and request they be removed or modified. Minn. Stat. § 181.962. If the employer and employee cannot reach an agreement on removal or modification, the employee is allowed to submit a written statement in rebuttal of up to five (5) pages in length. This written statement must be included in the personnel file and must be provided to any person subsequently given a copy of the disputed document for any reason. 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. Meaning the right to dispute specific documents as well as the right to inspect the whole file. It’s doubtful that most small employers 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. Minn. Stat. § 181.9641
No, unless you go through the dispute resolution procedure described above and the employer either fails to include your written rebuttal or if the employer conveys disputed information in a personnel file “with knowledge of its falsity or in reckless disregard of its falsity.” Minn. Stat. § 181.962, subd. 2. The law in general is protective of employer statements, including reasons for terminations provided to prospective employers.
Most employee defamation suits arise out of the reasons for termination, not the contents of a performance review or any other scrap of paper in the personnel file. (In the real world, what former employer provides performance reviews to prospective new employers?) The more realistic scenario of defamation suits based on employer references was addressed by a separate employer-friendly statute from 2004, which limits 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.
An employee fired for slugging a co-worker or chronic, unexcused absenteeism may find it hard to find another job if such reason is disclosed to prospective employers. If you are terminated from employment, you should find out the company’s policy concerning job references. If possible, get an assurance from your employer that only dates of employment and job title may be provided. Better yet, make sure the assurance is included in any severance or separation agreement you are asked to sign. Practically speaking, many employers maintain such no-reference policies to reduce the risk of being sued. As challenging as such suits may be for ex- employees.
Any document required to be maintained under MPRRAA that is excluded from an employee’s personnel file cannot be introduced into evidence at trial by an employer to defend against the employee’s lawsuit, where the exclusion is intentional or inadvertent and the employer fails to give the employee a “reasonable opportunity” to review the materials. Minn. Stat. § 181.963. It is not entirely clear from the statutory language whether employees have the right to see properly excluded “comments or data” maintained in a manager’s file that is 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 discrimination or whistleblower lawsuit, for example, where it is determined that such notes were wrongly omitted or excluded from the personnel file.
There is a paucity of court decisions interpreting the MPRRAA, 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 an unlawful termination claim? See Brustad v. Rosas, No. CX-99-1041, 1999 WL 1256352 (Minn. Ct. App. Dec. 28, 1999)(dismissing claim for violation of statute by an employer’s use of materials omitted from the personnel file, because the statute only limits relief to “actual damages” and plaintiff alleged no financial injury). 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.
The Minnesota employment lawyers of Wanta Thome PLC are committed to protecting the rights of all Minnesota employees. If you have questions about your employment rights, contact us for a free initial consultation.