Are Employees Entitled to their Personnel File after Termination? [VIDEO]

This article is part of a Q&A series on important employment law topics with attorney Kevin Wicka from The Tarantino Law Firm in Buffalo, New York. You can watch or read our entire conversation here.

As an employee in New York, may I request a copy of my personnel file after termination?

Kevin Wicka:
Yeah, I get asked that one a lot too in my practice, and it's surprising to a lot of people, but the personnel file is the property of the employer. So an individual employee does not have a right to go in and see their personnel file. Now, the exceptions to that might be if you're part of a union, you have a collective bargaining agreement, maybe that's something that the union negotiated for you. If the employer has a policy where they've opted into that and that's in their handbook, remember we talk about the employer that wants to craft their own handbook online, and maybe they've included a policy like that where they've let people, then they're going to have more of a problem denying someone. But in general, the general laws that the personnel file is the property of the employer, the employee does not have a right to go in and see it. And that's very surprising to a lot of people.

CJ Maurer:
Yeah, I'm glad you brought that up again because now that you've brought up the handbook twice in this conversation, one of the things that is really important is a lot of people think a lot of employers will think about the handbook really as communicating policies to employees. It's like an employee onboarding practice, but in so many cases, when it comes to labor law disputes or any other kind of legal issues, a lot of those roads lead back to the employee handbook. And when you see the ratification of new laws recently, paid family leave, sexual harassment prevention, the new voting act in New York state which guarantees all employees to have some time off to vote, all of that stuff comes back to the handbook and it needs to be in there. And you've seen in so many cases where designing the handbook the right way can really be one of your best, so your first line of defense-

Kevin Wicka:
Absolutely.

CJ Maurer:
From a legal standpoint. And it also can be promoted to, again, promote sound, healthy workplace policies and things like that. I just wanted to mention that because you brought that up again and I think it's a lot of things... I think it's something that a lot of employers maybe take for granted how important it is. So the benefits of just really getting that employee handbook and making sure it's constantly evolving and being updated properly.

Kevin Wicka:
I think when you look at the situation from the employer standpoint, I always try to assess it from the legal side and the practical side. And you touched on both of those right there. From a practical side of it, it's good to have communication with your employees so that they have an understanding what the expectations are so that they have an understanding of what are the rules. So it's from a practical standpoint, it's sound. And as you touched on, there are some really important legal things that they have to have in there now. And handbooks are not a one size fits all for every single employer. You really have to look at the situation of what have you been doing? What is your job? What are the duties entitled... What are the duties entail, rather? All of those things are important to make sure that you have the handbook crafted for that particular employer.

There are certain things though that have to be in there. New York state, as you touched on, has the mandatory sexual harassment law. So you have to have, any size employer in New York has to have that policy that conforms with New York state's models anti sexual harassment policy. You touched on the new voting rights. All of those things are important and they provide not only an understanding to the employee of what the rights are, but it also provides a defense to the employer in certain causes of action. So it is really an important piece that I think a lot of people take for granted.