EMPLOYERS NOW STATUTORILY REQUIRED TO PROVIDE WRITTEN NOTICE OF RIGHTS TO REVIEW PERSONNEL RECORDS

Effective January 1, 2008, Minnesota employers must provide “written notice to a job applicant upon hire of the rights and remedies provided” under Minnesota’s Personnel Record Review legislation. The notice requirement, codified at Minn. Stat. § 181.9631, is curiously brief and provides no specific or even general requirements on the extent of the disclosure or manner in which this required notice is to be provided.

Minnesota’s Personnel Record Review legislation, found at Minn. Stat. §§ 181.960-181.965, prescribes the following:

• "Personnel record" is defined as: to the extent maintained by an employer, applications for employment; wage or salary history; notices of commendation, warning, discipline, or termination; authorization for a deduction or withholding of pay; fringe benefit information; leave records; and employment history with the employer, including salary and compensation history, job titles, dates of promotions, transfers, and other changes, attendance records, performance evaluations, and retirement record.
• Upon written request, employees have the right to review their personnel records once every six months and at least once per year following termination of employment.
• Employees have the right to request removal of disputed information contained in a file. If employers and employees disagree on the propriety of removing certain information, employees have the right to include a written position statement on the disputed information, not to exceed five pages.
• If employees exercise their right to review their personnel files, employers may not use information omitted from personnel records in civil or administrative proceedings.
• Private remedies for violating the personnel record statutes are limited to actual damages only—although the Minnesota Department of Labor & Industry may impose fines of up to $5,000.
• Employers may not retaliate against employees for exercising their rights with respect to personnel records. Employees who are victims of any such retaliation may pursue civil claims for reinstatement, back pay and attorneys’ fees.

Steps Employers Can Take Now

Employers must determine how they will comply with the requirements of this new law and may wish to consult with legal counsel before preparing any compliance forms or documents. In the absence of any clarifying directive from the Minnesota Department of Labor and Industry, we are recommending that employers include a statement of their employees' rights under the Personnel Record Review statutes in new hire orientation materials and employee handbooks.

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This alert is a copyrighted publication produced by Oppenheimer Wolff & Donnelly LLP. The information contained in this alert is of a general nature and is subject to change. Readers should not act without further inquiry and/or consultation with legal counsel.