Employment lawyers are frequently asked whether an employee who has been terminated has the right to review their personnel file. Until recently, the answer was no. However, the answer has now changed based on the Commonwealth Court of Pennsylvania’s decision in Thomas Jefferson University Hospitals v. Pennsylvania Department Labor and Industry, no. 2275 CD 2014 (January 6, 2016), where in a 2-1 decision, the Commonwealth Court broadly interpreted a Pennsylvania law, the Personnel Files Act, and found that a recently terminated employee has the right to inspect the employee’s personnel file maintained by a former employer. This decision came as a surprise to many employment law attorneys as a literal reading of the statute and an earlier decision were often relied on to reach the opposite conclusion.
The Commonwealth Court case concerns a request to inspect a personnel file by a former employee which was made seven days after the employee was terminated. The Pennsylvania Personnel Files Act provides in relevant part: “An employer shall, at reasonable times, upon request of an employee, permit that employee . . . to inspect his or her own personnel files used to determine his or her own qualifications for employment, promotion, additional compensation, termination or disciplinary action.” 43 P.S. § 1322. Previous interpretations of the law relied on the Pennsylvania Personnel Files Act’s definition of “employee” “as any person currently employed, laid off with reemployment rights or on leave of absence and does not include applicants for employment or any other person.” 43 P.S. § 1321. Given that the law’s definition of employee explicitly uses the term “current”, the law had previously been interpreted to exclude former employees who were terminated from having a right to inspect their personnel file.
The Commonwealth Court held that the fact that the employee was not currently employed did not matter, finding that the word “current” is defined in Webster’s Eleventh Collegiate Dictionary as “presently elapsing, occurring in or existing at the present time” or “most recent” and the fact that the employee’s employment was terminated only one week prior to the employee’s request to review the personnel file, clearly qualifies as “presently elapsed” employment and/or “most recent” employment, thereby, falling within the law.
The Commonwealth Court rejected the employer’s reliance on the former employer’s argument that the legislative history reflects a failed attempt to change the definition of employee to include former employees. Lastly, the Court held that another earlier Commonwealth Court decision, Beitman v. Department of Labor and Industry, 675 A2d 1300 (Pa. Cmwlth 1996), was distinguishable because even though Beitman decided a similar issue, the decision was largely premised on the fact that the former employee who made her request had not been employed by the former employer for almost two and one-half years at the time the employee made her request.
It should be noted that to date, the right to review a personnel file has not been extended to include the right to make and/or receive a photocopy of the employee’s personnel file. Also, for terminated employees who foresee the need to potentially pursue litigation against a former employer, making a request to review the personnel file may be of great assistance in obtaining some perspective on the employer’s proffered reason for termination and also allow an assessment of any documentary evidence which an employer would rely in litigation.
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