Legal Updates

January 2005

Know How to Comply with the “Right to Know” Act

Michigan employers are required by state law (the Bullard-Plawecki Right to Know Act) to allow employees to review and copy their personnel records. The article will highlight an employer’s obligations under the Right to Know Act.

Reviewing and Copying Personnel Records
Upon written request an employer is required to provide employees with an opportunity to review their personnel records, up to two times per year. The review must take place at or near the employee's place of employment during normal office hours. However, alternate arrangements may be made if a review during normal office hours would require an employee to take time off from work. Employees are also entitled to obtain a copy of their personnel records upon request. The employer may charge the employee for the actual cost of copying the information.

The “personnel record,” which the employee may review and copy is not defined by what the employer keeps in its official “personnel file.” Instead, the “personnel record” is defined by the Right to Know Act to include any record kept by the employer that has affected or may affect the employee's qualifications for employment, promotion, transfer, additional compensation, or disciplinary action. A personnel record also includes records in the possession of an individual or company who has a contractual agreement with the employer to keep or supply the personnel record.

Personnel records do not include: (1) employment references if the identity of the person making the reference would be disclosed, 2) information regarding the employer's staff planning (e.g. compensation, promotions, job assignments) that relates to more than 1 employee; 3) medical records, if the records are available to the employee from the doctor or medical facility, 4) information that is clearly of a private nature, 5) investigative information (see below), 6) certain grievance information that is kept separately and does not otherwise qualify as a personnel record, and 7) records kept by an executive, administrative, or professional employee that are kept in the sole possession of the maker of the record, and are not accessible or shared with other persons.

Criminal Investigations
When there is reasonable cause to believe that an employee is engaged in criminal activity affecting the employer’s business, and the employer investigates the matter, the employer must keep a separate file of information relating to the investigation. The employee must be notified of the investigation when it is complete or after two years, whichever comes first. If the employee is not disciplined, the investigative file and all copies of it must be destroyed.

Disciplinary Records
Employers are prohibited from divulging a disciplinary report, letter of reprimand, or other disciplinary action to a third party (this does not include a labor organization representing the employee or other employees of the employer) without written notice to the employee. The written notice must be sent by first-class mail to the employee's last known address on or before the day the information is divulged. Employees my waive this notice as part of a signed employment application with another employer. The notice requirement also does not apply if disclosure is ordered in a legal action or arbitration or when the Information is requested by a government agency as a result of a claim or complaint by an employee. In addition, employers must review personnel records for compliance with the Act and ensure that disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than 4 years old prior are removed prior to releasing records to a third party, except when the release is ordered in a legal action or arbitration.

Non-Employment Activities
Employers are not permitted to gather or keep a record of an employee's associations, political activities, publications, or other non-employment activities unless the information is submitted in writing by the employee and the employee authorizes the employer to keep the information. In such case, that information is not part of the employee’s personnel record. This prohibition does not restrict an employer from gathering information on activities that occur on the employer's premises or during the employee's working hours that interfere with the performance of the duties of the employee or other employees.

Penalties
Employers who fail to comply with the Right to Know Act can be sued to compel compliance and for damages, which can include attorney’s fees. Also, if the personnel record is not provided to the employee upon request, it can be excluded from use in a legal proceeding when the employee objects.