September/October 2016 Issue

Also in this issue: Focus On Energy Faces Uncertain Future     |     Denial of Frac Sand Mining Permit Upheld by Appeals Court

Employee Requests to Review Personnel Records: Responding Lawfully

09.01.16

Wisconsin municipalities should be mindful of their obligation to lawfully respond to requests from employees and former employees for access to certain personnel records. Wisconsin’s Personnel Records Law, Wis. Stat. § 103.13, grants employees and former employees the right to review and supplement certain of their personnel records. 

Under Wisconsin’s Personnel Records Law, any Wisconsin employee, including a municipal employee, has the right to inspect any personnel documents maintained by the employer which ​“are used or which have been used in determining that employee’s qualifications for employment, promotion, transfer, additional compensation, termination or other disciplinary action, and medical records,” with some limited exceptions, discussed later. 

The employer must provide the employee with the opportunity to see the personnel records within seven working days after the employee makes the request. In addition, if the employee is currently involved in a grievance against the employer, he or she may designate in writing a representative of the employee’s union, collective bargaining unit, or other designated representative to review the employee’s personnel records covered by the law which may have a bearing on the grievance. 

The law does not attempt to define the term ​“personnel document.” Instead, if an employee makes a request, the employer has to review the documents for that employee and determine whether the documents ​“are used or … have been used” for any of the purposes listed in the statute. It is important for Wisconsin employers to realize that the location of a document does not determine whether an employee has a right to see the document. 

For example, if the municipality uses annual written performance reviews to determine annual pay increases, but elects not to maintain the document in the employee’s ​“personnel file,” the employee still has a right to see the reviews. By the same token, if a municipality discusses a personnel situation with the attorney for the municipality and makes notes of the conversation and puts the notes in the employee’s ​“personnel file” (not recommended), the fact that the notes happen to be in the employee’s ​“personnel file” does not give the employee the right to see the notes under the statute. The notes are still confidential and protected by the attorney-client privilege. To avoid errors regarding such documents, the notes should always be maintained in a separate, more secure location. 

Certain records are expressly excluded from the documents an employee is entitled to see. An employee does not have the right to see: 

1. Records relating to the investigation of possible criminal offenses committed by the employee. 

2. Letters of reference for the employee. 

3. Any portion of a test document, except that the employee may see a cumulative total test score for either a section of the test document or for the entire test document. 

4. Materials used by the employer for staff management planning, including judgments or recommendations concerning future salary increases and other wage treatments, management bonus plans, promotions and job assignments or other comments or ratings used for the employer’s planning purposes.

5. Information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of the other person’s privacy. 

6. Records relevant to any other pending claim between the employer and the employee which may be discovered in a judicial proceeding. In other words, if the employee has the right to discovery of the documents through litigation, the employer can refuse to show the employee the documents under Wis. Stat. § 103.13.

7. Medical records if the employer believes that disclosure of the employee’s medical records would have a detrimental effect on the employee. In such a case, the employer may release the medical records to the employee’s physician or through a physician designated by the employee, and the physician may in turn release the medical records to the employee or to the employee’s immediate family. 

A municipal employer should take the following steps to respond to an employee’s request to review personnel records: 

1. Make sure the requester has the right to see the documents under Wis. Stat. § 103.13. Remember, ​“employee” always includes ​“former employee” and sometimes includes representative of the employee when the request is for records relating to the employee’s grievance. 
2. Gather all documents, wherever located, which may be within the scope of the request. 
3. Review the documents to determine whether they must be disclosed, because they are used or have been used in determining qualifications for employment, promotion, transfer, additional compensation, termination or other disciplinary action, or are medical records. 
4. Identify whether any of the exceptions noted above apply. 
5. Consider getting legal advice for documents that fall into a gray area, such as documents that may fall into one of the statutory exceptions, or may constitute personal notes of a non-criminal investigation, notes of conversations with your attorney, documents that raise other legal issues, etc. 
6. Within seven working days, arrange for a time for the employee or proper representative to review the records. Make sure the employee is supervised at all times while the employee is reviewing original personnel documents. 
7. Make copies of any records requested by the employee. The municipality may charge a reasonable fee for providing copies of records, which may not exceed the actual cost of reproduction. 
8. Permit the employee to submit any written statements concerning the records. If the employee disagrees with any information contained in the personnel records, the employee may request that the employer remove or correct that information. If the employee and employer cannot reach agreement on modification of the record, the employee must be permitted to submit a written statement explaining the employee’s position. The employer must attach the employee’s statement to the disputed portion of
   the personnel record. The employee’s statement must be included whenever that disputed portion of the personnel record is released to a third party as long as the disputed record is a part of the file. This requirement is spelled out in Wis. Stat. § 103.13(4).

Municipalities should take care to comply with the law regarding requests to review personnel documents. An employer that violates the provisions of Wis. Stat. § 103.13 may be fined up to $100 for each violation. Each day of refusal or failure to comply with the duties of Wis. Stat. § 103.13 is a separate violation. 

— JoAnn M. Hart