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How to obtain your personnel file

EMPLOYEE RIGHT-TO-KNOW ACT

Public Act No. 397 of 1978

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Who Is Covered by the Law? (Section l(b))
Under this new law which became effective January 1, 1979, any employee or former employee hired by any employer with four or more employees in either the private or public sector has the right to request a review of his or her personnel file.

How May an Employee Request to See His or Her Personnel File? (Section 3)
An employee who wishes to review his or her file must make a written request which describes the personnel file to the employer. This request should include as many identifying factors as possible in order to facilitate the employer's retrieval of the record. Information should include name, Social Security number, dates of employment, branch number or location of the facility. Further identifying factors would include plant number, division number and badge number if such information applies. (See sample letter at end of this introductory section).

How Often May an Employee See His or Her Personnel File? (Section 3)

An employee may ask to see his or her personnel file at reasonable intervals, generally not more than two times in a calendar year or as provided by any other special law, or by the employee's collective bargaining agreement.

Where May an Employee Review His or Her Personnel File? (Section 3)
The review shall take place at a location reasonably near the employee's place of employment and during normal working hours. However, the employer may allow the review to take place at another time and location that would be more convenient to the employee. If a former employee wishes to review a personnel file kept by a past employer, other arrangements would have to be made, or the former employee would have to request in writing a copy of the information contained in his or her file.

Does Any Employee Need to Take Time Off to Review His or Her File? (Section 3)
No, providing that the employee wishes to review the personnel file kept by his or her current employer. If a review during normal working hours would require an employee to take time off from work, the employer must provide some other reasonable time or location that would be more convenient to the employee. This stipulation does not apply to cases where the employee wishes to review a personnel file kept by a former employer.

How Can an Employee Obtain a Copy of His or Her File? (Section 4)
After looking at the file, an employee may obtain a copy of any or all information contained in the file by simply requesting it from the employer. If the employee is unable to review his or her personnel record, he or she must demonstrate this inability to the employer, and then make a written request to the employer that a copy of the information in the personnel file be mailed to him or her. (See sample letter at end of this introductory section).

Can an Employer Charge a Fee for Providing a Copy of a Personnel File? (Section 4)
Yes. An employer may charge a fee for providing a copy of all or part of the information contained in the personnel file, but the fee shall be limited to the employer's actual cost of duplicating the information.

What if an Employee Disagrees With Information in the File? (Section 5)
If the employee disagrees with information contained in a personnel file, removal or correction of that information may be mutually agreed upon by the employer and the employee. If such an agreement cannot be reached, the employee may submit a written statement explaining his or her position, which will become a permanent part of the file. The law allows a statement of up to five sheets of 8-1/2 by 11 inch paper to be added to the file. It must be included whenever the file is divulged to a third party.

What Are Personnel Records and What Are Not? (Section 1(c))
Basically, the Act defines personnel records as information identifying an employee which is kept by an employer and which is used to determine an employee's qualifications for employment, promotions, transfers, additional compensation, or disciplinary information.

The law does not require the following information to be open for review as a part of the personnel record:
- Employee references supplied to an employer that would reveal the identify of the person making the reference.
- Materials which disclose an employer’s staff planning regarding more than 1 employee, including salary increases, management bonus plans, promotions, and job assignments. Such materials relating only to the employee concerned are required to be a part of the file, however.
- Medical reports and records in an employer’s possession if the information is available to the employee from other sources.
- Personal information concerning someone other than the employee if disclosure would be a clearly unwarranted invasion of the other person's privacy.
- Information concerning the employee relative to a criminal investigation, and kept apart from other records.
- Records limited to grievance investigations which are kept separately and are not used to determine an employee's qualifications for employment, promotions, transfers, additional compensation, or disciplinary action.
- Records maintained by an educational institution concerning a student which are considered educational records according to the Federal Family Educational Rights and Privacy Act of 1974. These records are open pursuant to that Federal law, 20 U.S.C. 1232g.
- Notes kept by an executive, administrative, or professional employee which remain solely in the possession of the maker of the record, and are not seen by anyone else. However, a note concerning an occurrence or fact about an employee may be entered into the personnel file up to six months after the date of the occurrence or the date the fact becomes known. After this time, the information may not become part of the personnel file.

All other records kept and used by an employer in determining an employee's qualifications for employment, promotions, transfers, additional compensation, or disciplinary action must be available to the employee for review.

Can an Employer Collect Information About an Employee's Non-employment Activities? (Section 8)
No. An employer is strictly prohibited from gathering and keeping records of an employee's associations, political activities, publications, or communication of nonemployment activities unless the employee gives written authorization allowing the collection and retention of such information. If such authorization is given, any record kept by the employer, such as professional association memberships or a list of published articles or books, becomes part of the personnel file.

Must an Employer Notify an Employee When Divulging Personnel Record Information to a Third Party? (Section 6)
Normally, the employer does not have to notify the employee when transmitting personnel records to a third party who is not a part of the employer's organization or a member of a labor organization representing the employee. In the case of disciplinary reports, letters of reprimand or other reports of disciplinary action, however, an employer or former employer must give written notice to the employee when divulging the information to third parties. Such notice must be mailed on or before the day the information is transmitted.

Notification is not required when:
- The employee has waived written notice as part of a written, signed employment application with another employer.
- The disclosure is ordered in a legal action or arbitration to a person involved in that legal action or arbitration.
- Information is requested by a government agency because of a claim or complaint by an employee.

Can Outdated Disciplinary Reports Be Released? (Section 7)
Employers must review information in personnel files before releasing any material and may not transmit to a third party disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than four years old, except when ordered to do so in a legal action or arbitration.

What Happens to Information Gathered in a Criminal investigation? (Section 9)
If an employer believes an employee has engaged in criminal activity which may harm the employer's property or business, and the employer conducts his own investigation of such suspected criminal activity, a separate file may be kept concerning that investigation. When such an investigation is complete, however, or after two years, whichever comes first, the employer must notify the employee that such an investigation was or is being conducted. At the conclusion of the investigation, if no disciplinary action is taken, the investigative file and all copies of the material it contained must be destroyed.

If the employer is a police department or other criminal justice agency, a special procedure requires the results of any investigation which does not result in disciplinary action to be kept in a separate file, and not used to determine future eligibility for promotion, transfer, additional compensation, or disciplinary action.

What Are the Legal Remedies for the Violation of This Act? (Section 11)
If an employer fails or refuses to follow this Act, an employee may bring an action for compliance in a circuit court. The appropriate court would be the circuit court located in the county where the employee lives, works, or where the personnel file is maintained. The court can issue an order enjoining the employer to comply with the Act. In addition, the employer's penalty for violation of the Act is actual damages plus costs. For a willful and knowing violation of the Act the penalty is $200 minimum damages plus costs, reasonable attorney's fees and actual damages.

Sample Letter Requesting to See Personnel File
Your Address
Your Telephone Number

Date
Mr. John Doe, Personnel Manager
Doe Corporation
Corporation City, Michigan

Dear Mr. Doe:
This is a request to review my personnel file made under the Bullard-Plawecki Employee Right-to-Know Act (Public Act No. 397 of 1978). My Social Security number is 139-34-2058, and I have worked at Doe Corporation since June 1975. I am an assistant to Division Manager Walter Maher in the Electronics Division of your Livingston branch, and my badge number is 54.

I understand that all personnel files are maintained in Corporation City, but I cannot take time off to review my file. Therefore, as provided by Section 3 of Public Act No. 397 of 1978, I request a review of my file at the Livingston branch of Doe Corporation at your earliest convenience.
Thank you.

Sincerely,
Your Name

Sample Letter Requesting Copy of Personnel File
Your Address
Your Telephone Number

Date
Mr. John Doe, Personnel Manager
Doe Corporation
Corporation City, Michigan

Dear Mr. Doe:
This is a request for a copy of my personnel file made under Section 4 of the Bullard-Plawecki Employee Right-to-Know Act (Public Act No. 397 of 1978). I am a former employee of Doe Corporation, having worked as assistant to Plant Manager, Harry McCann, at your Howell branch, Branch #32, from July 18, 1973 through August 29, 1976. My Social Security number is 139-34-2058.

I have since moved to Arizona and cannot return to Michigan to review my personnel file. Therefore, I am requesting that you mail me a copy of all information contained in my file.
I understand that there is a fee for copying this information, which covers the cost of copying, and I will be happy to pay this amount upon receipt of my personnel file. If you require payment in advance, please let me know the amount as soon as possible.
Thank you.

Sincerely,
Your Name


BULLARD-PLAWECKI EMPLOYEE RIGHT TO KNOW ACT
Act 397. 1978. p. 1386; Eff. Jan. 1, 1979


AN ACT to permit employees to review personnel records; to provide criteria for the review; to prescribe the information which may be contained in personnel records; and to provide penalties.

The People of the State of Michigan enact:

423.501 Short title; definitions.
Sec. 1. (1) This act shall be known and may be cited as the "Bullard-Plawecki employee right to know act”.

(2) As used in this act:
(a) "Employee" means a person currently employed or formerly employed by an employer.
(b) "Employer" means an individual, corporation, partnership, labor organization, unincorporated association, the state, or an agency or a political subdivision of the state, or any other legal, business, or commercial entity which has 4 or more employees and includes an agent of the employer.
(c) "Personnel record" means a record kept by the employer that identifies the employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee's qualifications for employment, promotion, transfer, additional compensation, or disciplinary action. A personnel record shall include a record in the possession of a person, corporation, partnership, or other association who has a contractual agreement with the employer to keep or supply a personnel record as provided in this subdivision. A personnel record shall not include:
(i) Employee references supplied to an employer if the identity of the person making the reference would be disclosed.
(ii) Materials relating to the employer's staff planning with respect to more than 1 employee, including salary increases, management bonus plans, promotions, and job assignments.
(iii) Medical reports and records made or obtained by the employer if the records or reports are available to the employee from the doctor or medical facility involved.
(iv) Information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of the other person's privacy.
(v) Information that is kept separately from other records and that relates to an investigation by the employer pursuant to section 9.
(vi) Records limited to grievance investigations which are kept separately and are not used for the purposes provided in this subdivision.
(vii) Records maintained by an educational institution which are directly related to a student and are considered to be education records under section 513(a) of title 5 of the family educational rights and privacy act of 1974, 20 U.S.C. 1232g.
(viii) Records kept by an executive, administrative, or professional employee that are kept in the sole possession of the maker of the record, and are not accessible or shared with other persons. However, a record concerning an occurrence or fact about an employee kept pursuant to this subparagraph may be entered into a personnel record if entered not more than 6 months after the date of the occurrence or the date the fact becomes known.

History: New 1978, p. 1386, Act 397, Eff. Jan. 1, 1979.
423.502 Personnel record information excluded from personnel record; use in judicial or quasi-judicial proceeding.

Sec. 2. Personnel record information which was not included in the personnel record but should have been as required by this act shall not be used by an employer in a judicial or quasi-judicial proceeding. However, personnel record information which, in the opinion of the judge in a judicial proceeding or in the opinion of the hearing officer in a quasi-judicial proceeding, was not intentionally excluded in the personnel record, may be used by the employer in the judicial or quasi-judicial proceeding, if the employee agrees or if the employee has been given a reasonable time to review the information. Material which should have been included in the personnel record shall be used at the request of the employee.
History: New 1978, p. 1387, Act 397, Eff. Jan. 1, 1979.

423.503 Review of personnel record by employee.
Sec. 3. An employer, upon written request which describes the personnel record, shall provide the employee with an opportunity to periodically review at reasonable intervals, generally not more than 2 times in a calendar year or as otherwise provided by law or a collective bargaining agreement, the employee's personnel record if the employer has a personnel record for that employee. The review shall take place at a location reasonably near the employee's place of employment and during normal office hours. If a review during normal office hours would require an employee to take time off from work with that employer, then the employer shall provide some other reasonable time for the review. The employer may allow the review to take place at another time or location that would be more convenient to the employee.

History: New 1978, p. 1387, Act 397, Eff. Jan. 1, 1979.
Cited in other sections: Section 423.503 is cited in §408.l024.
423.504 Copy of information in personnel record; fee; mailing.


Sec. 4. After the review provided in section 3, an employee may obtain a copy of the information or part of the information contained in the employee's personnel record. An employer may charge a fee for providing a copy of information contained in the personnel record. The fee shall be limited to the actual incremental cost of duplicating the information. If an employee demonstrates that he or she is unable to review his or her personnel record at the employing unit, then the employer, upon that employee's written request, shall mail a copy of the requested record to the employee.

History: New 1978, p 1387, Act 397, Eff Jan. 1, 1979.
Cited in other sections: Section 423.504 is cited in §408.l024.
423.505 Disagreement with information contained in personnel record; agreement to remove or correct information; statement; legal action to have information expunged.


Sec. 5. If there is a disagreement with information contained in a personnel record, removal or correction of that information may be mutually agreed upon by the employer and the employee. If an agreement is not reached, the employee may submit a written statement explaining the employee's position. The statement shall not exceed 5 sheets of 8-1/2 by 11-inch paper and shall be included when the information is divulged to a third party and as long as the original information is a part of the file. If either the employer or employee knowingly places in the personnel record information which is false, then the employer or employee, whichever is appropriate, shall have remedy through legal action to have that information expunged.

History: New 1978, p. 1387, Act 397, Eff. Jan. 1, 1979.
423.506 Divulging disciplinary report. letter of reprimand, or other disciplinary action; notice; exceptions.


Sec. 6. (1) An employer or former employer shall not divulge a disciplinary report, letter of reprimand, or other disciplinary action to a third party, to a party who is not a part of the employer's organization, or to a party who is not a part of a labor organization representing the employee, without written notice as provided in this section.
(2) The written notice to the employee shall be by first-class mail to the employee's last known address, and shall be mailed on or before the day the information is divulged from the personnel record.
(3) This section shall not apply if any of the following occur:
(a) The employee has specifically waived written notice as part of a written, signed employment application with another employer.
(b) The disclosure is ordered in a legal action or arbitration to a party in that legal action or arbitration.
(c) Information is requested by a government agency as a result of a claim or complaint by an employee.

History: New 1978, p. 1387, Act 397, Eff. Jan. 1, 1979.
423.507 Review of personnel record before releasing information; deletion of disciplinary reports. letters of reprimand, or other records; exception.


Sec. 7. An employer shall review a personnel record before releasing information to a third party and, except when the release is ordered in a legal action or arbitration to a party in that legal action or arbitration, delete disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than 4 years old.

History: New 1978, p. 1388, Act 397, Eff. Jan. 1, 1979.
423.508 Gathering or keeping certain information prohibited; exceptions; information as part of personnel record.


Sec. 8. (1) An employer shall not gather or keep a record of an employee's associations, political activities, publications, or communications of non-employment activities except if the information is submitted in writing by or authorized to be kept or gathered, in writing, by the employee to the employer. This prohibition on records shall not apply to the activities that occur on the employer's premises or during the employee's working hours with that employer that interfere with the performance of the employee's duties or duties of other employees.
(2) A record which is kept by the employer as permitted under this section shall be part of the personnel record.

History: New 1978, p. 1388, Act 397, Eff. Jan. 1, 1979.
423.509 Investigation of criminal activity by employer; separate file of information; notice to employee; destruction or notation of final disposition of file and copies; prohibited use of information.


Sec. 9. (1) If an employer has reasonable cause to believe that an employee is engaged in criminal activity which may result in loss or damage to the employer's property or disruption of the employer's' business operation, and the employer is engaged in an investigation, then the employer may keep a separate file of information relating to the investigation. Upon completion of the investigation or after 2 years, whichever comes first, the employee shall be notified that an investigation was or is being conducted of the suspected criminal activity described in this section. Upon completion of the investigation, if disciplinary action is not taken, the investigative file and all copies of the material in it shall be destroyed.

(2) If the employer is a criminal justice agency which is involved in the investigation of an alleged criminal activity or the violation of an agency rule by the employee, the employer shall maintain a separate confidential file of information relating to the investigation. Upon completion of the investigation, if disciplinary action is not taken, the employee shall be notified that an investigation was conducted. If the investigation reveals that the allegations are unfounded, unsubstantiated, or disciplinary action is not taken, the separate file shall contain a notation of the final disposition of the investigation and information in the file shall not be used in any future consideration for promotion, transfer, additional compensation, or disciplinary action.

History: New 1978, p. 1388, Act 397, Eff. Jan. 1, 1979.
423.510 Right of access to records not diminished.


Sec. 10. This act shall not be construed to diminish a right of access to records as provided in Act No. 442 of the Public Acts of 1976, being sections 15.231 to 15.246 of the Michigan Compiled Laws, or as otherwise provided by law.

History: New 1978, p. 1389, Act 397, Eff. Jan. 1, 1979.
423.511 Violation; action to compel compliance; jurisdiction; contempt; damages.


Sec. 11. If an employer violates this act, an employee may commence an action in the circuit court to compel compliance with this act. The circuit court for the county in which the complainant resides, the circuit court for the county in which the complainant is employed, or the circuit court for the county in which the personnel record is maintained shall have jurisdiction to issue the order.
Failure to comply with an order of the court may be punished as contempt. In addition, the court shall award an employee prevailing in an action pursuant to this act the following damages:
(a) For a violation of this act, actual damages plus costs.
(b) For a willful and knowing violation of this act, $200.00 plus costs, reasonable attorney's fees, and actual damages.

History: New 1978, p. 1389, Act 397, Eff. Jan. 1, 1979.423.512 Effective date.

Sec. 12. This act shall take effect January 1, 1979.

History: New 1978, p. 1389, Act 397, Eff. Jan. 1, 1979.

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