In New Hampshire, upon request, employers must allow current and former employees to inspect their personnel files or provide the employee with a copy of the file.
The statute permits employers to withhold an employee’s personnel file if the employee is the subject of an investigation at the time of the request and disclosure of the information would prejudice law enforcement, or if the information requested related to a government security investigation.
What Is Part of an Employee’s Personnel File?
The New Hampshire Department of Labor administrative code defines “personnel file” as:
any personnel records created and maintained by an employer and pertaining to an employee including and not limited to employment applications, internal evaluations, disciplinary documentation, payroll records, injury reports and performance assessments, whether maintained in one or more locations, unless such records are exempt from disclosure under RSA 275:56, III or are otherwise privileged or confidential by law. The term does not include recommendations, peer evaluations or notes not generated or created by the employer.
N.H. Admin. Lab. Code § 802.09.q.
Under the statute, an employee’s “personnel file” isn’t just the file kept by the HR department. It includes any records created by the employer, including records that may be maintained in more than one location.
In Dolan v. Sungard Sec. Fin., LLC, 2008 U.S. Dist. Lexis 1181 (D.N.H. 2008) the court determined that notes of a meeting kept by a Human Resources representative, in which an employee complained of an employment issue, fell within the statute’s “personnel file” definition. The court reasoned that, given the breadth of the definition of “personnel file,” the notes were part of the personnel file because the notes were created by the employer, “pertain[ed] to an employee and would fall into an area that is similar to the listed categories.”
Certain information is, however, exempt from this definition. Information on an employee’s health, fitness, lifestyle and other information obtained for the purposes of providing employees with a health risk assessment or wellness program is not part of the employee’s personnel file.
How to Request Your Personnel File
Employees who want to obtain a copy of their personnel files should put the request in writing to their employer or former employer, asking for a complete copy of the personnel file (including the medical portion).
If an employee puts a request in writing and the employer refuses to give him or her a copy of the personnel file, the New Hampshire Department of Labor may get involved to help get the personnel file.
If you have questions about requesting a personnel file in New Hampshire, you should contact an experienced employment attorney.
How to Respond to a Request for a Personnel File
First, an employer should make sure that the requester is entitled to receive the file. The employer should verify that the employee is not the subject of an investigation as discussed above. If a third party requests an employee’s or former employee’s personnel file, employers should consult with legal counsel and should not release it without written authorization from the employee or appropriate legal process.
Once the employer has determined that the requester is entitled to receive the personnel file, the employer should then gather all appropriate documents. It is important to keep in mind that there may be documents that are part of the personnel file that are not kept in the Human Resources file.
The employer should then review the file to make sure that the documents it has assembled are documents that the employee is entitled to.
Again, contact a knowledgeable employment law attorney if you have questions about responding to a request for a personnel file in New Hampshire.
