Q. We fired an employee based on an eyewitness account of theft. We documented that report and put it in the ex-employee's personnel file. That person has now hired an attorney and asked to see the file. We feel that we have no obligation to respond. Do we have to turn it over without a subpoena? —E. I.
A. State law governs the issue of access to personnel files. Some states take the position that personnel files are the organization's property and, therefore, don't need to be turned over in the absence of a subpoena. Other states say that employees (or their designated agents/attorneys) have the right to inspect or even copy their personnel files. Check with your state law and/or consult with a lawyer to find out the law in your state (which you did not mention).
However, as we've said before, even if your state law allows you to deny employees' access to personnel records, you may nevertheless want to disclose those records. The employee's attorney will want to review the file, no doubt, to attempt to assess the case's merits. If you have detailed and credible records, disclosing the file may actually dissuade the attorney from following through on the lawsuit.
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