Colorado Employees Granted Right to Inspect Personnel Files

The Colorado legislature passed House Bill 16-1432 and it was signed by the governor on June 10, 2016.  This law allows private employees to inspect their own personnel files and records once per year and gives any former employee the right to inspect his or her file once after termination.  The legislature’s stated purpose for this policy is to foster an environment of open communication between employers and employees.

A “personnel file” is broadly defined as any records “that are used or have been used to determine the employee’s qualifications for employment, promotion, additional compensation, or employment termination, or other disciplinary action.”  The definition of “personnel file” does not include documents pertaining to confidential reports from previous employers or active criminal and disciplinary investigations, among others.  Additionally, “personnel file” does not include “any information in a document or record that identifies any person who made a confidential accusation.”

From a practical perspective, this law will make it even more critical that employers train their managers about the proper contents for a personnel file and ensure that those people understand the file’s contents are subject to employee review.  It is also important that employers work with their counsel to determine what sorts of records are required to be maintained by law, what records are important to the employer’s business operations, and what records should not be preserved in employee personnel files at all.  This law specifically states that it does not require an employer to “create, maintain, or retain a personnel file on an employee or former employee,” and the law does not require a specific record-retention period.  That said, employers should consider developing specific policies about what records will be maintained and for how long to avoid accusations that records have been improperly destroyed in the event of litigation.

This new law applies to all Colorado private employers except for financial institutions chartered and supervised under state or federal law.  Specifically, banks, trust companies, savings institutions, and credit unions are excluded from complying with this new law.  Public employers are also excluded because the right of inspection of personnel files for public employees is already covered by the Colorado Open Records Act.

Interestingly, this law does not provide a private cause of action for individual employees who request their personnel files and are denied access.  As such, the mechanism to enforce the law is somewhat unclear.

This bill will become effective on January 1, 2017.

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