Disclosure Requirements

The information you collect about employees is sensitive and few people should be allowed to see it, often not even the employee. Just as there is no federal law about keeping a personnel file, there is no federal law about who gets access to it. Many states, however, limit, guarantee, or otherwise regulate employee access to personnel files.

You may want to put credit reports, criminal record check results, medical records, and other highly personal information in a separate file. Keep these in a safe place, and make a note, in the regular personnel record, of where the other records are kept.

Other than an employee, the most likely source of "requests" to see information will be regulatory agencies charged with enforcing workplace regulations. For example, if you routinely hire minors, a state or federal inspector might demand to see records establishing that you're not in violation of child labor laws. Agencies charged with enforcing employment discrimination rules might also want to examine the make-up of your workforce.

Another document that you may wish to keep in a completely separate file is the I-9 form that establishes each employee's identity and eligibility to work. That way, you can provide an Immigration and Naturalization Service inspector with the information requested without compromising the confidentiality of the remaining information.

Prospective employers may contact you for information regarding your former employees that may be part of the former employees’ personnel records. Most states consider the information "qualifiedly privileged." That means that the information is protected, and if you share it with prospective employers you're protected unless the information is given with known falsity, in bad faith or with reckless disregard for the truth.

A number of states require former employers to provide a job reference letter or some information about people who worked for them. If you're doing business in one of these states, be aware that you might be legally obligated to provide some information regarding former employees. These states are: California, Delaware, Indiana, Kansas, Maine, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, Texas, and Washington.