Why Having a Copy of Your Personnel File Is So Important.
Some states have laws that entitle employees to request and retain copies of certain of their personnel records. New Jersey does not. This creates a big problem if you believe you were terminated by your employer due to unlawful discrimination or retaliation. Let’s say you decide to search for an attorney to represent you in a lawsuit against your former employer under the New Jersey Law Against Discrimination. Inevitably, when you speak to attorneys, no matter how strong your description of discrimination or retaliation, they will ask: What kind of employee were you? What kind of performance reviews did you receive? Any disciplines or other problems I should know about?
The attorneys, understandably, are trying to find out whether your former employer had a good non-discriminatory, non-retaliatory reason for firing you. If so, this drastically undercuts if not torpedoes the strength of your claim, making it much less likely an attorney will want to take the risk of representing you.
In an ideal world, you’d be able to obtain a copy of your personnel file from your former employer, confirming for prospective attorneys that your termination wasn’t performance-based. Unfortunately, since New Jersey law is silent on the issue, employers take the position that once you are fired, your personnel file becomes the employer’s property. If you request a copy of your file from HR post-termination, you will most likely be denied. And without a copy of your file, any attorney considering representing you will have to take you at your word that you were meeting the expectations of your job. That’s because, if the attorney represents you, he or she won’t be able to request and obtain a copy of your personnel file from the employer until the “discovery” stage of litigation – and discovery begins weeks after the initial filing of your lawsuit.
All of the foregoing is a way of saying: In order to persuade a good attorney to represent you, that attorney needs to be able to trust you. While having a copy of your personnel file on hand isn’t required to obtain legal representation, it certainly helps establish trust and will make it easier to find counsel.
What Copies Should You Make and Retain for Yourself?
Per a New Jersey Supreme Court case (the Quinlan decision), “the totality of circumstances” determines whether copying and retaining employer records qualifies for legal protection under the Law Against Discrimination (or “LAD”). Courts have to look at seven factors:
- How you came to obtain the records. Records that your employer distributes, sends, or gives to you as part of the normal course of your job weigh in favor of protection. Records that you sought out or obtained outside the normal course of your job and without your employer’s or co-worker’s permission weigh against protection (i.e., don’t go rifling through anyone’s desk).
- What you did with the records. For instance, if you only handed them over to your attorney in support of your discrimination lawsuit, it weighs in favor of protection. If you surreptitiously passed them around to your co-workers to instigate a workplace conflict, it weighs against protection.
- Your employer’s interest in confidentiality. For instance, if the records contain personal health information about your co-workers, they are not protected and should not be copied/retained.
- Your employer’s privacy or confidentiality policy. If your employer has a clearly articulated and regularly enforced policy prohibiting you from copying and retaining certain records, it may weigh against protection.
- The relevance of the records to your discrimination claim vs. the disruption to the employer’s business by disclosure. For instance, copies of the write-ups you believe you received in retaliation for reporting discrimination are (1) limited in scope and don’t impact business operations, and (2) highly relevant to an LAD claim, so they’re likely protected.
- Your reason for copying and retaining the document as opposed to obtaining it through discovery.
- Whether your copying and retaining the documents furthers the remedial purpose of the LAD.
Based on the Quinlan factors, then, you can safely copy and retain the following:
- Performance evaluations; written disciplines or awards; or other records concerning your performance which your employer submitted to you for your review and signature
- Employee handbooks or portions thereof which your employer distributed to you
- Letters, texts, or emails which you sent to your employer outlining your complaints of discrimination and/or retaliation
However, avoid copying and retaining any records:
- Containing any information clearly proprietary to your employer, such as trade secrets
- Obtained or accessed outside the normal course of your job duties, without your employer’s or co-worker’s knowledge and permission
- Subject to state or federal privacy laws, such as student records, employee health records, or records containing employee tax IDs.
Doing so may subject you to criminal charges for theft or civil/criminal penalties for breach of state or federal confidentiality laws.
Often, employees don’t consider the option of copying their personnel files until after they’ve been terminated. If you believe you’re currently being subjected to workplace discrimination or retaliation and would like to discuss your options going forward, call our offices today for a free consultation.