Personnel Records

[jabrown]

I am in the discovery phase of my divorce. I requested a copy of my personnel file together with copies of my weekly time worked, Comptime and overtime policies and was:

1. Refused a copy of my personnel file *
2. Told that they do not have information relative to time worked (I punch an electronic timeclock)

* This suggests that there is something in that file that should not be there.

The policy on personnel files does NOT include conditions for requesting a copy.

Further, the Director of HR has no HR background, and has worked with a couple of people in customer service to sabotage the owner's mother who was brought in to the company by her son to work in Customer Service. I got caught in the middle of this and was reprimanded stating she (HR Director) would fire me if I told anyone anything about this, which would include a district court judge if asked.

Do you think that my attorney can convice the judge to subpoena these records?

[cbg]

I'm not going to second guess what a judge would or would not do. What I will tell you is that under neither Federal nor Texas law is your employer required to give you access to your personnel file.

Also, it is exceedingly rare for timecards or other time work records to be kept in the personnel file. They are traditionally kept in a separate file in the Payroll department.

I do not even remotely agree that their refusal to allow you access to your file, or their claim that they do not have payroll records (which is undoubtably true - they didn't say the company doesn't have them; they said HR doesn't have them) means they are altering your file. Rather, I think it means that the company has a policy of keeping company records confidential and that, like most companies, payroll records are kept in payroll.

[Pattymd]

Having said all that, however, they must respond to a valid subpoena. Your attorney should know that and go through the proper process to have a discovery subpoena issued.

[jabrown]

CBG, Proper channels are to go thru human resources. SHE SAID THAT THE COMPANY DOES NOT have any records reflecting time worked. The bottom line is that she lied.

PattyMD, thanks for your reply. My attorney is out of town until Monday. Typically I would direct any questions to him. The company that I work for has amateurs working is core. The policies that they do have are incomplete at best. I agree with you that they would have to respond to a subpoena, however, suspect that they would plead ignorance, create and/or amend a policy to cover their butts.

BTW, HR stated that the reprimand was for gossip (where there is no written policy for) because they found out that the owner's mother told me things about the goings on and I responded to her.

Personally, I think their butts would be on the line with the owner should he find out.

[Pattymd]

Well, for the company's sake, I HOPE she lied, because not keeping records of hours worked for at least three years is a violation of the record-keeping requirements under the federal Fair Labor Standards Act, assuming you are a nonexempt employee. If you are exempt, the FLSA does not require the employer to keep these particular records.

Make your attorney earn his fees.

[cbg]

Propor channels may indeed require going through HR. The fact remains that barring a subpoena, they have no legal obligation to allow you access to your file. And even in states where you do have such access, I'm by no means certain that includes payroll records.

Bottom line, it doesn't matter whether she lied or not. Until or unless they've been served with a subpoena, they don't have to give you what you've asked for.

[kdj12345]

I saw above that it was said that an employer has no duty to provide personnel records. Is that correct? I assume in the event of litigation they could all be subpoenaed from the employer. Would an employer more likely just provide them anyway in order to avoid the irritation of being subpoenaed? I guess the question is, if someone sues an employer, won't they get the records anyway, and if so, why not just provide them in the first place?

[cbg]

Assuming you are also in Texas, yes, it is true that an employer has no obligation to provide you access to your personnel records. Federal law does not require access and approximately half the states also do not. The other half of the states require an employer to provide an employee with at least limited access to their personnel file. Texas is one of the state that does not.

An employer who believes that their records should remain confidential might refuse on the gamble that a judge will not issue the subpoena. And it's quite possible they might win the gamble. Whether or not the judge would issue the subpoena will depend on whether or not a convincing enough case could be made that they should be. While IF a subpoena is issued, the employer would have to comply, it's by no means a guarantee that one would be issued.

Personally, even if my state did not require access (my state is one of the ones that does) I'd let the employee have access anyway because I think in many cases it's the easiest way to prove to the employee that all the laws have been followed and that they were not subjected to illegal treatment. But some employers believe otherwise.

[kdj12345]

Thanks for the quick reply, very informative! I assume that the same applies to payroll records as well (I can't imagine an employee could get copies of their payroll records but not personnel file, but who knows).

[cbg]

As I said above, it's quite rare for payroll records to be kept in the personnel file. I'm not aware of any law in any state requiring an employee to be given access to the payroll records - I'm also not aware of any reason an employer should object to granting them access, but that's just me. Patty? Texas709? Any thoughts?

[Pattymd]

Well, if the employees have kept their pay stubs and W-2s, there shouldn't be any REASON for additional copies. We'll do it on a limited basis upon the employee's request, but with 15,000 active employees, you can see that we must be very careful. If we did it for everybody, I'd have to hire a full-time person just for that.

But more to the point, there is no legal requirement to release payroll records to employees or ex-employees. A valid subpoena however, of course.

[Texas709]

No Texas law (or federal law) requires access of personnel files of employees, former employees, or any other interested party. A valid subpoena is another thing, as mentioned. Employer records would be turned over in that case. Many Texas (and non-Texas) employers have a policy of rejecting requests for access to personnel records, and it's usually not related to trying to hide anything. Sometimes it's merely because they can.

The only law that applies to Texas and that requires employers to maintain records of hours worked is the federal regulation. Texas law requires employers to provide pay statements showing time worked to employees, but does not otherwise refer to records retention of payroll or time records. (Incidentally, that part of the Texas Labor Code is not assigned to the Workforce Commission, or any other agency, for enforcement.) Beyond that, any employer records of time worked are considered the property of the employer, and are disclosed at the discretion of the employer. Same with personnel records.