Employees have right to view personnel file
Published 02/04/05

An employer may not prohibit a worker or former worker from inspecting her personnel file and coping all or part of her file.

What constitutes a personnel file under New Hampshire law is any and all personnel records created or maintained by the worker pertaining to the worker, not just the documents located in the worker's file. It may include employment applications, internal evaluations, disciplinary documentation, payroll records, injury reports, and performance assessments whether maintained in one or more locations.

Information that can be kept from the worker includes information:

•  regarding a worker who is the subject of an investigation at the time of their request if the disclosure would prejudice law enforcement;

•  regarding a government security investigation; or

•  privileged or confidential by law.

For example, if the company's president sought legal advice regarding handling a particular worker's misconduct and obtained an e-mail from the company's attorney regarding that worker that e-mail normally would be able to be kept out of the view of the worker under the attorney/client privilege doctrine.

If a worker in reviewing information contained within her files disagrees with the information and no agreement can be reached with management regarding its removal or correction, the worker is permitted under New Hampshire law to submit a written statement explaining her version of the information together with supporting evidence which data must be added by the employer to the personnel file of that worker.

When a terminated worker requests her personnel file, it is important that the employer exercise due diligence in investigating all relevant company files in regard to any information that would be considered under New Hampshire law as part of a personnel file.

If the terminated worker does not obtain certain documents which support legitimate reasons for the employer's termination of her until after litigation has commenced even though she requested a copy of her personnel file shortly after being fired, fabrication of these documents may be alleged by the worker's counsel at trial.

If third parties request information in a worker's or former worker's personnel file, absent a signed authorization by the worker or a legal obligation to do so, the information should not be disclosed by the employer. If the information contained in the worker's personnel file is subpoenaed, that subpoena should be taken up with the employer's legal counsel to see whether or not the subpoena is legally sufficient. For example, if the worker or former worker is a party to a personal injury suit or divorce action in Massachusetts and the opposing counsel serves a subpoena on a New Hampshire corporation, the Massachusetts subpoena may be invalid in New Hampshire and, if invalid, should not be complied with by the employer unless the worker authorizes disclosure in writing.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.