It is becoming more and more common for employees to request the opportunity to inspect or copy their employment file. These requests can be made either during the course of employment or after an employee’s termination. When such a request is made, an employer needs to be aware of their obligations under Illinois law.
Under Illinois law, an employee’s right to review personnel records is governed by the Employment Labor Relations Personal Record Review Act. 820 ILCS 40/1 et. seq. Under the Act, employees have the right to make two inspection requests in a calendar year, and the employer is required to provide the employee with an opportunity to inspect and/or copy their personnel records within seven (7) working days after the request is made. Generally, any such inspections should take place at the location where the records are maintained.
After an employee requests to review or copy their file, the employer is faced with the question of which records it must produce. To answer this question, the employer must consider Sections 2 and 10 of the Act. Section 2 of the Act provides in pertinent part:
“[e]very employer shall, upon an employee’s request…permit the employee to inspect any personnel documents which are, have been or are intended to be used in determining the employee’s qualifications for employment, promotion, transfer, additional compensation, discharge of other disciplinary action except as exempted out pursuant to Section 10 of the Act.” 820 ILCS 40/2.
As noted from the above language, Section 10 of the Act exempts certain records from inspection and copying. This includes (i) letters of reference, (ii) information of a personal nature about a person other than the employee, (iii) records relevant to any other pending claim between the employer and the employee which may be discovered in a judicial proceeding, and (iv) investigatory or security records maintained by an employer to investigate criminal conduct by an employee or other activity by the employee which could reasonably be expected to harm the employer’s property, operations or business. 820 ILCS 40.10. Each employment file should be reviewed on a case by case basis to determine what records, if any, should be exempted.
It is important that an employer ensure that the “employment file” being produced contains a complete set of records contemplated under the Act. Under Section 4 of the Act, omitting to include required personnel record information in an employee’s personnel record can result in the employer being prohibited (barred) from using the missing records in any subsequent legal proceeding between the employer and the employee.
Given the obligations imposed under the Act, an employer would be wise to ensure compliance with the time limitations required under the law and to regularly review and employee’s personnel file to ensure that it is complete and up-to-date. Failure to do so could have significant implications for an employer.