Must we give a fired employee his personnel file?

Q. I recently discharged an employee for performance problems. At the end of the termination meeting, he asked for a copy of his personnel file. Do I have to give discharged employees a copy of their personnel files? —B.N.

A. No. It is up to each Texas employer to decide whether to permit employees to have copies of their personnel files. A common concern among employers is that an employee may try to use items from his or her personnel file to initiate a lawsuit or discrimination charge. No law in Texas requires employers to provide employees with a copy of their personnel files.

So, when an employee asks for a copy of his or her personnel file, you can simply respond that personnel files are company property and that it’s the company’s policy not to provide copies to anyone, including current and former employees.

However, by law, employers must provide employees with certain documents upon request, without regard to whether they are in a personnel file. For example, ERISA says employers must provide (when requested) documents relating to employee benefit plans (such as summary plan descriptions). Similarly, OSHA requires employers to provide, again upon request, copies of exposure and medical records. (You should keep employees’ medical records separate from their personnel files.)

Remember that if a former employee brings a lawsuit, he or she will be able to obtain a copy of the file. Thus, you should ensure that personnel files are properly maintained and that personnel actions are accurately documented. It may also make sense to provide the file, or at least parts of it, to the employee even though there is no legal obligation to do so.