Employees in the state of Wisconsin, like employees everywhere, might sometimes wonder what is contained within the employee file maintained by their employer. After a new employee finishes their initial paperwork (i.e. designating an emergency contact and completing an I-9 form), these files may seem like a black hole – information goes in, but it never comes out. The information in these files, however, can be of huge importance to an employee. Employers have a great deal of authority in making decisions about raises, hiring, terminations and qualifications, but the data or reasons for those decisions might be contained within a worker’s file.
Fortunately, the Wisconsin statutes provide an avenue for workers to access their employment records - Wisconsin Statute section 103.13, the “Wisconsin Open Personnel Records Law.” The law has a number of nuances and details that are important for employees interested in their records to know:
1. While the law is called the “Open Personnel Records Law,” it does not mean that the records are open to everybody. An employee can only request her or his own records. An employee may, however, designate a representative those same records, if that employee is involved in a current grievance against her or his employer. That designation should be made in writing.
2. The Law requires an employer to give an employee access to records twice in any calendar year, though that number can change if it’s addressed in a collective bargaining agreement. An employer can require that any request to inspect records be made in writing. As a general rule, if an employee thinks there may be an issue about an employer giving access, requests in writings are better because they create a record of the request. After the request, the employer has 7 working days to give the employee access.
3. The Law gives employees a clear statutory right to inspect records, but not to remove anything from their file. If an employee disagrees with something in their personnel record, they can try to reach an agreement with the employer to have that information removed or corrected. If there is no agreement, the employee should be given the opportunity to submit a written statement about why they think the information should be corrected. That statement should be put in the employee’s records, attached to the disputed information, and must be sent along with the disputed information if and when it is released to third parties.
4. While the Law generally applies to an employee’s own medical records, which she or he should be allowed to inspect, an employer may decide to release those records to the employee’s physician instead, if they believe that allowing the employee to view those records alone would be “detrimental.” It is important to note that there are many rules and regulations, both state and federal, regarding the unauthorized release of medical records. If you have questions about those laws, you should contact an attorney.
5. An employee has the right to copy or receive copies of the information in their file. If an employer makes copies, they may charge a reasonable fee for the reproduction, not to exceed the cost of making those copies.
6. Finally, there are a number of exceptions to the law – records that an employer does not have to allow an employee to inspect. For example: Records relating to the investigation of possible criminal offenses by the employee, letters of reference for that employee and information of a personal nature regarding a third party. There are numerous other exceptions.
7. Finally, nothing in this law requires an employer to keep personnel records. If they do, however, and fail to allow for the inspection of such records as outlined above, an employer may face fines for each day they do not respond to a request for inspection or refuse inspection.
If you have any questions about the Open Personnel Records Law or other employment issues, you should contact a firm with experience in the area of employment law, who may be able to help.