On June 10, 2016, Governor John W. Hickenlooper signed Colorado House Bill 16-1432, Personnel Files Employee Inspection Right (the “Bill”), into law. The Bill, which provides certain current and former private-sector employees the right to access and obtain a copy of their personnel files, will take effect on January 1, 2017.
Employer Obligations and Rights
The Bill requires covered private employers to provide employees the right to inspect and obtain a copy of their personnel files at least once a year. A former employee will have a right to inspect his or her personnel file once after termination of employment.
The Bill does not apply to public employees of agencies subject to the Colorado Open Records Act, C.R.S., §§ 24-72-201 to 24-72-309. It will apply to every other Colorado employer except financial institutions chartered and supervised under state or federal law. Thus, banks, trust companies, savings institutions, and credit unions will not be covered by the Bill.
When an employee or former employee requests access to his or her personnel file, the review may occur at the employer’s place of business at a time convenient to both the employer and employee. The employee may obtain a copy of the whole personnel file or any part of it.
The Bill does not require an employer to create, maintain, or retain a personnel file for an employee or former employee. An employer may require the employee or former employee to pay the reasonable cost for copying documents. In addition, an employer may require that an individual responsible for managing personnel data on behalf of the employer (or another individual designated by the employer) be present when the employee or former employee accesses his or her personnel file.
The Bill’s Application to Personnel Files
The Bill defines a personnel file as the personnel records of an employee that are used or have been used to determine the employee’s qualifications for employment, promotion, additional compensation, or employment termination, or other disciplinary action. The Bill excludes from the definition of “personnel file”:
- documents or records required to be maintained in a separate file by federal or state law or rule, e.g., medical records;
- documents or records pertaining to confidential reports from previous employers of the employee, e.g., job references;
- documents or records pertaining to an active criminal investigation, an active disciplinary investigation by the employer, or an active investigation by a regulatory agency; and
- information that identifies an individual who made a confidential accusation, as determined by the employer, against an employee.
The Bill expressly provides that, in isolation, it does not create a private right of action for employees who claim their rights to inspect or copy files have been violated.
Employers that will be covered by the Bill should consider taking the following steps:
- review personnel file retention policies, if any;
- if an employer maintains personnel files, the employer should separate required material from that excluded from the Bill; and
- create standardized processes and train human resources personnel in how to administer granting employees and former employees access to their personnel files.
As always, employers should contact their employment counsel for guidance on the impact of the Bill.