Employee Records and References: What are my Rights?

8/4/2005

I frequently field phone calls from employees who are concerned about information in their personnel files, and what information their former employer may give to potential employers. The answers to their questions are usually governed by statute in Minnesota and Wisconsin. The following is an overview of the law governing access to personnel records, and restrictions on references from employers.

Personnel Records

    A.    Minnesota

A Minnesota employee has the right to review his or her personnel record every six months, or upon separation from employment, when requested in writing. Minn. Stat. § 181.961, subd. 1. The employer must allow inspection within seven to 14 days, but need not arrange for an inspection during the employee’s regular hours. Id., subd. 2(a,b). A current or former employee is entitled to an accurate copy of the personnel file. Id., subd. 2(b,c). If the employer does not provide a complete copy of the personnel file to the employee, it may not use the omitted material in an administrative or judicial action. Minn. Stat. § 181.963.

Employee assistance records may also be reviewed or copied by the participating employee. Minn. Stat. § 181.980, subd 2. These records must be kept separate from the personnel file, and may not be disclosed to a third person. Id., subds. 3, 5.

If an employee disagrees with something contained in the personnel file, he or she may ask the employer to remove the information. If the employer does not agree, the employee may submit a written statement of up to five pages identifying the dispute and explaining the employee’s position. Minn. Stat. § 181.962, subd. 1. The written statement must be kept, and disclosed, as part of the personnel file. Id. An employer may not retaliate against an employee for exercising these rights. Minn. Stat. § 181.964.

    B.    Wisconsin

Access to personnel records is very similar in Wisconsin. An employer must respond to an employee’s written request to inspect his or her personnel file within seven working days. Wis. Stat. § 103.13(2). An employee may request an inspection at least two times per calendar year, and is entitled to see all documents that have been used in employment decisions affecting the employee. Id. Medical records kept on the employee are also subject to inspection. Wis. Stat. § 103.13(5). The employee may designate a representative to inspect the records. Wis. Stat. § 103.13(3).

A Wisconsin employee is also entitled to file a statement in the personnel file stating his or her position on disputed information. Wis. Stat. § 103.13(4). This statement is kept as a permanent and inseparable part of the file. Id. An employer must allow the employee to copy his or her records, and may not discriminate against an employee who exercises his or her statutory rights. Wis. Stat. § 103.13(7, 7m).

Employer References

    A.    Minnesota

In 2004, a new statute hit the books that covers references from current and former employers. Generally, a former employer may reveal whatever information it wants to. Employers, however, were often concerned that they might be held liable for any resulting damages. The new statute sets out what information may be revealed without risking civil liability. Minn. Stat. § 181.967, subd. 2. In order to bring a claim against an employer who releases the information outlined in the statute, the employee must prove by clear and convincing evidence that the information was false and defamatory, the employer knew it, and "acted with malicious intent to injure the current or former employee." Id.

Under the new statute, a Minnesota employer1 may tell a prospective employer or employment agency the following information concerning an employee or former employee: dates of employment; compensation and wage history; job description and duties; and training and education provided by the employer. Minn. Stat. § 181.967, subd. 3(a). With written permission from the employee, an employer may also reveal written employee evaluations, written disciplinary warnings and actions, and written reasons for separation. The employee must be given copies of the information disclosed, and must be told the identity of the recipient of the information. Id., subd. 3(b). The prospective employer may not disclose the information to anyone. Id., subd. 3(c).

The new statute does not protect employees who have been disciplined or who have resigned because of "acts of violence, theft, harassment, or illegal conduct documented in the personnel record." This information may be passed on to potential employers or employment agencies, with or without the permission of the employee. Minn. Stat. § 181.967, subd. 3(a)(5). If an employer discloses this information, however, it must also simultaneously mail a copy to the employee’s last known address. Id. A similar provision provides that a school district may give another school district information about acts of violence toward, or inappropriate sexual contact with, a student that resulted in discipline. Id., subd. 5.

Finally, a Minnesota employee who is terminated is entitled to know why. If a former employee submits a written request within 15 working days of being fired, the employer must provide, in writing, the truthful reason for the termination. Minn. Stat. § 181.933.

    B.    Wisconsin

The law regarding employer references in Wisconsin is much simpler than in Minnesota, since a "reference" is defined as a mutually agreed-upon statement provided pursuant to a settlement of dispute between the employer and employee, or as part of a mutual agreement regarding the employee’s termination. Wis. Stat. § 895.487(1). An employer who provides this kind of a reference is immune from civil liability unless the employee can show the employer knew the information to be false, and the reference was made maliciously. Wis. Stat. § 895.487(2).

Conclusion

An employee who has just been terminated feels lost and out of control. Additional information almost invariable helps bring things into focus: perhaps the reasons for termination have been germinating for years, or perhaps the termination is, in fact, unsupported by the employment records. Whatever the case, employees have the right to see the files kept on them by their employers, and to know what a former employer may or may not say when contacted for a reference for the next job.

 
You should consult legal counsel before making any attempt to apply the law or any information offered above to your own specific situation. Factual differences may result in substantial differences in the application of employment laws, and each state has its own laws.  This article was authored by Diane Odeen, an employment law attorney, practicing in both Minnesota and Wisconsin. Click here to find out more about Ms. Odeen's practice.  For more information about employment-related issues, contact Diane Odeen at 612-336-9315, 715-381-7112 or diane@lommen.com