When Employees Request Their Personnel Records

You receive a letter from a recently terminated employee requesting “everything” in their personnel file. Wisconsin law gives current and former employees the right to inspect certain personnel records, but that right is not unlimited. Knowing what to disclose, what to withhold, and how to respond helps employers comply with the law and prepare for what may follow.

Responding to a Records Request

Under Wisconsin law, employers must allow current and former employees to inspect personnel documents used to determine the employee’s qualifications for employment, promotion, additional compensation, termination, or other disciplinary action. The employee’s right to inspect also extends to medical records maintained by the employer, subject to certain exceptions. Employers may require written requests and must grant at least two requests per calendar year, unless a collective bargaining agreement provides otherwise. An employee with a current grievance against the employer may designate in writing a union representative or other representative to inspect personnel records that may bear on the resolution of the grievance.

Employers must allow employees to inspect their personnel records within seven working days after receiving the request. The right to inspect includes the right to copy or receive copies, but employers may charge a reasonable fee that does not exceed the actual cost of reproduction. If an employer maintains medical records and reasonably believes that disclosure would harm the employee, the employer may instead release those records to the employee’s physician or another physician designated by the employee. Employers that violate the law may be fined up to $100 for each violation, and each day of noncompliance constitutes a separate violation. Wisconsin law also prohibits employers from discharging or otherwise discriminating against employees for exercising their rights under the statute.

What Records Must You Disclose?

Importantly, not every document labeled or stored in an employee’s “personnel file” qualifies as a personnel document subject to inspection. Conversely, storing a document outside the employee’s personnel file does not eliminate the employee’s right to inspect it. Whether you must disclose a document generally depends on whether you used it for one of the statutorily enumerated employment decisions. Common examples of personnel documents subject to inspection may include employment applications, performance evaluations, attendance records, and disciplinary or corrective action notices.

For example, if you use a spreadsheet tracking employees’ performance metrics to determine annual pay increases, an employee may have the right to inspect the portions reflecting that employee’s performance, even if you store the spreadsheet outside the employee’s personnel file. On the other hand, placing a document in the employee’s personnel file does not necessarily make it subject to disclosure, especially if a statutory exception or another protection, such as the attorney-client privilege, applies.

What Records May You Withhold?

An employee’s right to inspect personnel records is not unlimited and does not extend to the following:

• Records relating to the investigation of possible criminal offenses committed by the employee;
• Letters of reference for the employee;
• Any portion of a test document, except that the employee may inspect a cumulative total test score for a section of the test or for the entire test;
• Materials used by the employer for staff management planning, including judgments or recommendations concerning future salary increases and other wage treatments, management bonus plans, promotions, job assignments, or other comments or ratings used for the employer’s planning purposes;
• Information of a personal nature about a person other than the employee if its disclosure would constitute a clearly unwarranted invasion of the other person’s privacy;
• Records that the employer does not maintain; and
• Records relevant to any other pending claim between the employer and the employee that may be discovered in a judicial proceeding.

In practice, these exceptions may cover interview or aptitude test questions, preliminary management recommendations concerning future departmental reorganizations, and records from an internal investigation concerning a possible criminal offense, such as employee theft. By contrast, records from a routine workplace investigation concerning a policy violation or other misconduct do not automatically fall within the investigation exception.

Correcting Disputed Information

An employee’s right to inspect personnel records does not allow the employee to remove or revise information simply because the employee dislikes or disagrees with it. The employee and employer may mutually agree to correct or remove disputed information. However, where no such agreement can be reached, the employee may submit a written statement explaining their position. The employer must then attach the statement to the disputed portion of the employee’s record and include it whenever the employer releases that portion of the personnel record to a third party.

Bottom Line

Maintain personnel records consistently and document employment decisions accurately and contemporaneously. A written procedure for handling personnel record requests can help you identify responsive documents, meet the seven-working-day statutory deadline, and determine what records, if any, should be withheld. Although a request, particularly with respect to a former employee, does not necessarily mean a claim will follow, it may signal that an employment-related claim is forthcoming. Therefore, consider consulting an attorney when a request follows a termination, disciplinary action, workplace complaint, or other adverse employment decision. Finally, do not create or add documents after the fact to justify an earlier employment decision, as such documentation may appear self-serving and undermine the credibility of an otherwise legitimate, nondiscriminatory reason for the decision.