Employment Law
Please note: the articles published below are for general information and should not be relied on as legal advice for any specific situation.
All material © Andrew J. Felser, P.C.
Q&A: EMPLOYEE RIGHT OF ACCESS TO PERSONNEL FILES
Employees in Colorado now have the statutory right to review and copy portions of their personnel file. Under a law enacted in 2016, which took effect on January 1, 2017, employers must permit employees to inspect and obtain a copy of their personnel files at least once a year. Terminated employees have a one-time right of access within one year after termination.
Q. What is the purpose of the law?
According to the legislature, the overall purpose is to help avoid litigation by making it easier for employees to more fully assess their claims before they sue.
Q. Does the law apply to all employers?
No. Generally speaking, governmental agencies are excluded from the requirement.
Q. Does the law grant an employee access to everything in the file?
No. Documents or records required by state or federal law to be placed in a separate file (such as medical records), confidential reports from previous employers, or an active criminal, disciplinary, or regulatory investigation do not need to be provided for inspection under this statute.
Q. Can an employee sue an employer for not providing the access required?
No. The statute specifically prohibits such a lawsuit.
Q. If an employee can’t sue the employer for failure to provide access as required by the statute, what is the employer’s legal risk if the employer denies access?
Conceivably, the rules of evidence would permit an employee to use the employer’s refusal to comply with the law as evidence against the employer in a lawsuit for unlawful discrimination, wrongful discharge or other violation of rights. Under Rule 404(b), the employee could argue that the employer’s noncompliance is relevant to show a plan or intent to ignore the employee’s legal rights.
Q. Is an employer obligated to maintain personnel files?
Not under this statute. Other state and federal regulations do require retention of certain personnel records.