One relatively recent change in Colorado employment law is a personnel file access law enacted by the Colorado General Assembly in 2016. That law became effective on Jan. 1, 2017.
This law added a new section 8-2-129 to the Colorado Revised Statutes. Some highlights of this new law are:
- It covers most employees and employers in Colorado, OTHER THAN those covered by the Colorado Open Records Act. That exemption covers public employees. The new statute applies to all non-exempted private employers, regardless of the number of employees who work for an employer.
- It does not cover any financial institution chartered and supervised under state or federal law, including banks, trust companies, savings institutions and credit unions.
- Its definition of the term “personnel file” is broad. That term includes all personnel 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.” There are four exceptions:
- Documents (such as medical or FLMA documents) that federal or state law requires to be kept in a separate file from the personnel file;
- Documents or records pertaining to previous employers’ confidential reports;
- An active criminal investigation, active disciplinary investigation by the employer, or active investigation by a regulatory agency; and
- Any information that identifies any person who made a confidential accusation.
- There are limits to requests to inspect and copy personnel files. They are:
- An employee or ex-employee can request copies of personnel files at least annually; except that an ex-employee can request inspection once, and presumably only once, after termination of employment.
- The inspection and copying shall occur at the employer’s office.
- The inspection must be at a time that is convenient to both the employee and employer.
- The employer can require the inspection to occur in the presence of another person designated by the employer.
- The employer may require the employee to pay the reasonable costs of duplication of documents.
- The law does not require an employer to maintain personnel file or any particular documents in a personnel file. However, those requirements might be imposed by other laws.
- The law does not create a new cause of action — that is, a right to file a lawsuit to compel compliance or to seek damages for an employer’s failure to comply.
A request to inspect and copy a personnel file should be fairly easy to prepare. According to the statute, it does not have to be on a particular form or in any particular format. However, nothing in this statute prohibits any employer from requiring that an employee use a particular form. Inspection and copying should be a relatively simple, straightforward process.
An employer that fails to produce personnel documents under this statute could face judicial and/or jurors’ skepticism if it claims to have “discovered” missing documents later. Specifically, a judge or jury would be free to conclude that these “recently discovered” documents are fakes, created after the fact to justify an earlier employment action.
Employees, ex-employees and their representatives should use this new statute routinely. Employees’ lawyers know that it is better to discover a negative document before filing a lawsuit, rather than to learn about it after spending hundreds of hours and many thousands of dollars in litigation. In some cases, learning what documents are in a person’s personnel file might cause that person not to file a lawsuit. Early inspection can avoid nasty surprises later.
Colorado and about 19 other states have enacted personnel file access laws. This new law will help shed a light on employment practices that, until now, too often have occurred in the dark.