Ask the Expert: When Can a Former Employee See Their Personnel Files?

Question: A former employee who was fired has requested a copy of her personnel file. What documents would she be entitled to receive?

Answer: Massachusetts General Laws Ch. 149, §52C outlines what constitutes a personnel file and discusses an employer’s duty to retain that file. The statute further provides a formal process for employees to inspect their file, typically no more than twice per calendar year.

If an employee makes a written request for their file, the statute requires you to provide them access within five business days, either by providing copies or by allowing physical inspection. The materials for production include the following, which are included in the definition of personnel file under the statute:

• Their name;
• Their address;
• Their date of birth;
• Their job title and description;
• Their pay rate and any other compensation paid;
• Their starting date;
• Their job application;
• Their resumes or other forms of employment inquiry they submitted to the employer in response to an advertisement;
• All employee performance evaluations, including but not limited to, employee evaluation documents;
• Written warnings of substandard performance;
• Lists of probationary periods;
• Waivers signed by the employee;
• Copies of dated termination notices; and
• Any other documents relating to disciplinary action regarding the employee.

The statute requires you to retain the personnel file for three years following an employee’s separation. You must keep files longer if an employee has filed a lawsuit against you. Should an employee make a request for their file, post-termination, you are obligated to provide the documents that comprise the personnel file, as defined by law. You aren’t required to produce documents related to the employee other than those listed in the statute.

Certain materials should be segregated from the personnel file, such as medical records, and should not be produced. You are also not required to provide confidential business documents, such as investigative reports, or private information regarding an employee other than the one requesting their file.

Outside of the general list of required materials under §52C, a personnel file is a highly fluid concept affected by the specific employee, type of job, nature of your business, timeframe of employment, etc. When responding to requests for a personnel file—in particular for an employee who has been terminated—you are strongly encouraged to seek legal advice to ensure compliance with the statute and to prevent inadvertent disclosure of materials that aren’t considered part of the file.

Maureen James is an attorney at Skoler, Abbott & Presser, P.C., in Springfield, Massachusetts, and can be reached at mjames@skoler-abbott.com.

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