Bullard Plawecki Employee Right to Know Act
Have you ever wondered why one person advances in a company and another does not when both seem equally qualified? Suppose you worked diligently for your employer year after year and, no matter what you did, you were consistently overlooked for advancement. What if you quit for a good reason and could not obtain another job no matter how hard you looked? Could there be a hidden reason? How would you know without seeing your personnel file?
Now, with the enactment of the Bullard-Plawecki Employee Right-to-Know Act, Michigan workers have at their disposal the tool which will give them access to their own personnel records.
Who is covered by the law?
Under this new law which became effective January 1, 1979, any employee or former employee hired by any employer with four or more employees in either the private or public sector has the right to request a review of his or her personnel file.
How may an employee request to see his or her personnel file?
An employee who wishes to review his or her file must make a written request which describes the personnel file to the employer. This request should include as many identifying factors as possible in order to facilitate the employer's retrieval of the record. Information should include name, Social Security number, dates of employment, branch number or location of the facility. Further identifying factors would include plant number, division number and badge number if such information applies.
How often may an employee see his or her personnel file?
An employee may ask to see his or her personnel file at reasonable intervals, generally not more than two times in a calendar year or as provided by any other special law, or by the employee's collective bargaining agreement.
Where may an employee review his or her personnel file?
The review shall take place at a location reasonably near the employee's place of employment and during normal working hours. However, the employer may allow the review to take place at another time and location that would be more convenient to the employee. If a former employee wishes to review a personnel file kept by a past employer, other arrangements would have to be made or the former employee would have to request in writing a copy of the information contained in his or her file.
Does any employee need to take time off to review his or her file?
No, providing that the employee wishes to review the personnel file kept by his or her current employer. If a review during normal working hours would require an employee to take time off from work, the employer must provide some other reasonable time or location that would be more convenient to the employee. This stipulation does not apply to cases where the employee wishes to review a personnel file kept by a former employer.
How can an employee obtain a copy of his or her file?
After looking at the file, an employee may obtain a copy of any or all information contained in the file by simply requesting it from the employer. If the employee is unable to review his or her personnel record, he or she must demonstrate this inability to the employer, and then make a written request to the employer that a copy of the information in the personnel file be mailed to him or her.
Can an employer charge a fee for providing a copy of a personnel file?
Yes. An employer may charge a fee for providing a copy of all or part of the information contained in the personnel file, but the fee shall be limited to the employer's actual cost of duplication the information.
What if an employee disagrees with information in the file?
If the employee disagrees with information contained in a personnel file, removal or correction of that information may be mutually agreed upon by the employer and the employee. If such an agreement cannot be reached, the employee may submit a written statement explaining his or her position, which will become a permanent part of the file. The law allows a statement of up to five sheets of eight and one half inch paper to be added to the file. It must be included whenever the file is divulged to a third party.
What are personnel records and what are not?
Basically, the Act defines personnel records as information identifying an employee which is kept by an employer and which is used to determine an employee's qualifications for employment, promotions, transfers, additional compensation, or disciplinary information. The law does not require the following information to be open for review as a part of the personnel record:
- Employee references supplied to an employer that would reveal the identity of the person making the reference.
- Materials which disclose an employer's staff planning regarding more than 1 employee, including salary increases, management bonus plans, promotions, and job assignments. Such materials relating only to the employee concerned are required to be a part of the file, however.
- Medical reports and records in an employer's possession if the information is available to the employee from other sources.
- Personal information concerning someone other than the employee if disclosure would be a clearly unwarranted invasion of the other person's privacy.
- Information concerning the employee relative to a criminal investigation, and kept apart from other records.
- Records limited to grievance investigations which are kept separately and are not used to determine an employee's qualifications for employment, promotions, transfer, additional compensation, or disciplinary action.
- Records maintained by an educational institution concerning a student which are considered educational records according to the Federal Family Educational Rights and Privacy Act of 1974. These records are open pursuant to that Federal law, 20 U.S.C. 1232g, a copy of which is available from the office of Perry Bullard.
- Notes kept by an executive, administrative, or professional employee which remain solely in the possession of the maker of the record, and are not seen by anyone else. However, a note concerning an occurrence or fact about an employee may be entered into the personnel file up to six months after the date of the occurrence or the date the fact becomes know. After this time, the information may not become part of the personnel file.
All other records kept and used by an employer in determining an employee's qualifications for employment, promotions, transfers, additional compensation, or disciplinary action must be available to the employee for review.
Can an employer collect information about an employee's non-employment activities?
No. an employer is strictly prohibited from gathering and keeping records of an employee's associations, political activities, publications, or communication of nonemployment activities unless the employee gives written authorization allowing the collection and retention of such information. If such authorization is given, any record kept by the employer, such as professional association memberships or a list of published articles or books, becomes part of the personnel file.
Must an employer notify an employee when divulging personnel record information to a third party?
Normally, the employer does not have to notify the employee when transmitting personnel records to a third party who is not a part of the employer's organization or a member of a labor organization representing the employee. In the case of disciplinary reports, letters of reprimand or other reports of disciplinary action, however, an employer or former employer must give written notice to the employee when divulging the information to third parties. Such notice must be mailed on or before the day the information is transmitted. Notification is not required when:
- The employee has waived written notice as part of a written, signed employment application with another employer.
- The disclosure is ordered in a legal action or arbitration to a person involved in that legal action or arbitration.
- Information is requested by a government agency because of a claim or complaint by an employee.
Can outdated disciplinary reports be released?
Employers must review information in personnel files before releasing any material and may not transmit to a third party disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than four years old, except when ordered to do so in a legal action or arbitration.
What happens to information gathered in a criminal investigation?
If an employer believes an employee has engaged in criminal activity which may harm the employer's property or business, and the employer conducts his own investigation of such suspected criminal activity, a separate file may be kept concerning that investigation. When such an investigation is complete, however, or after two years, whichever comes first, the employee must notify the employee that such an investigation was or is being conducted. At the conclusion of the investigation, if no disciplinary action is taken, the investigative file and all copes of the material is contained must be destroyed.
If the employer is a police department or other criminal justice agency, a special procedure requires the results of any investigation which does not result in disciplinary action to be kept in a separate file, and not used to determine future eligibility for promotion, transfer, additional compensation, or disciplinary action.
What are the legal remedies for the violation of this Act?
If an employer fails or refuses to follow this Act, an employee may bring an action for compliance in a circuit court. The appropriate court would be the circuit court located in the county where the employee lives, works, or where the personnel file is maintained. The court can issue an order enjoining the employer to comply with the Act. In addition, the employer's penalty for violation of the Act is actual damages plus costs. For a willful and knowing violation of the Act, the penalty is $200 minimum damages plus costs, reasonable attorney's fees and actual damages.