As readers of The Workplace Report know, we strongly recommend that all employers keep detailed records of their employees’ performance. Doing so will allow employers to protect themselves from unsubstantiated claims of workplace discrimination, and will aid an employer when evaluating employees. There is one piece of legislation, however, that employers who maintain employment records must be aware of: The Personnel Record Review Act. See 820 ILCS 40/0.01, et seq.
The Personnel Record Review Act is a state statute, which means that it only applies to employers based in Illinois. The Act requires all Illinois employers with five or more employees to permit an employee to inspect his personnel record at least twice a year. The employer must grant the employee’s request within seven working days, or request a seven-day extension if it has a valid reason for being unable to meet the deadline. The employee is entitled to inspect all documents that are used to determine that employee’s qualification for employment, promotion, transfer, raises, discharge, or disciplinary action. The employer may (and probably should) require the employee to view the records on the employer’s premises during working hours.
Employers do not, however, have to allow employees to inspect the following documents:
- Medical records;
- Records of criminal activity;
- Records involving the employee that might be used in a court case between the employer and employee;
- Letters of reference;
- Materials relating to the employer’s staff planning;
- Records that might invade the privacy of other people in the workplace.
If an employer improperly excludes evidence, that evidence may not be used in any court case between the employer and employee. Moreover, the employer must provide written notice to the employee prior to disclosing any disciplinary records to a third party. The employer also many not disclose any disciplinary records which are more than four years old.
If the employee disagrees with information contained in the records, the employer may agree to correct or remove the disputed information. If the employer does not agree, then the employee may attach a written statement to the record disputing it.
Since employees have a right to review their personnel files, employers should be careful about the types of information they keep in that file. Gossip or personal attacks should not be included. Instead, as we have noted before, it is best to keep employment records with objective reports of an employee’s performance.
