If you want to avoid airing your organization’s dirty laundry in public, take note: Before you turn over a copy of an employee’s personnel record, go through the file carefully. Remove any correspondence between the HR office and your attorney.
It is technically privileged communication. If you leave it in the file and it makes its way to the employee and her lawyer, chances are the court will say you lost the right to keep the information confidential.
Recent case: About two months after she was fired, Chanel McGee asked for a copy of her personnel file. The HR office turned over a copy without first removing e-mails between the HR manager and corporate legal counsel. The correspondence, clearly marked “Attorney-client privileged,” discussed whether McGee should be allowed to take.
McGee sued under theand Michigan’s Elliott-Larsen Civil Rights Act. She attached copies of the e-mail correspondence to the lawsuit. The company wanted it back. The court refused, reasoning that if the HR office was careless enough to leave the e-mails in the file, they gave up the right to call it privileged. (McGee v. Parker Hannifin, No. 07-12373, ED MI, 2007)
Final tip: Don’t delegate responding to record requests to a clerk or administrative assistant. Instead, review the file yourself and determine what should be copied and remove any legal correspondence.