Many of the records that employers maintain about their employees are incorporated into personnel files that are kept for each employee. The handling of personnel records is mainly a matter of employer policy rather than law. Some states have laws that give employees the right, under specified circumstances, to review (and perhaps copy) the contents of their personnel files.
The most comprehensive law dealing with personnel records is the federal Privacy Act. The Privacy Act regulates the handling of personnel records by agencies of the federal government. The act defines record broadly to include “any item, collection, or grouping of information about an individual that is maintained by an agency.” The Privacy Act also limits the kinds of information that federal agencies can keep regarding their employees and imposes a duty on federal agencies to maintain accurate records.
Violations of the Privacy Act can be difficult to prove because plaintiffs must show that the violations were intentional or willful and that there were actual damages, such as an adverse employment determination. The Privacy Act does not apply to private-sector employers, however, if an employer operates in a state with a personnel records law, the employer generally has to allow employees access to their personnel files. In terms of divulging information, communication of false, damaging information to third parties without a legitimate need to know might lead to defamation claims.
Even information that is true could prompt a legal claim for public disclosure of private facts if the information is genuinely private in nature and effectively made public knowledge. It is advisable for private-sector employers to obtain the consent of employees prior to divulging information from their personnel records to third parties.
Personnel Records
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