The Illinois Personnel Record Review Act provides the general rule that employers with at least five employees, excluding immediate family, must provide employees or former employees who have left the employer’s service within the preceding year, with any personnel records or documents upon request which are, have been, or are intended to be used in determining that employer’s qualifications for employment, promotion, transfer, pay, raise, discharge or other disciplinary action. Letters of reference for an employee are specifically excluded from this provision. Additional exceptions exist where the materials relate to, affect or contain private information about another employee. A willful violation of the Illinois Personnel Record Review Act can expose an employer to actual damages and attorney’s fees.
The Personnel Record Review Act was amended, effective January 1, 2022. The amendments provide that an employee may file a complaint or commence an action alleging a disciplinary action disclosure violation within three years after the date of the disclosure of the report, letter, or other disciplinary action.
Employers should remain cognizant to not disclose disciplinary records of an employee to a third party without prior written notice, as required under the Illinois Personnel Record Review Act. Employees aggrieved by such disclosures have three years to file a lawsuit.
The Americans with Disabilities Act (ADA) requires medical information to be kept separately from other personnel records. Medical information of any kind must be kept out of personnel files. This includes requests for leaves of absence based on underlying medical conditions and notes from physicians listing work restrictions based on health concerns. If a doctor’s note excusing an employee’s absence contains medical information, it should be kept in a separate file to preserve its confidentiality. A simple notation in the personnel file that a written note was provided to excuse the absence is sufficient. In most cases, workers’ compensation claim forms should not be kept in personnel files because of the confidential medical information they often contain. Benefit claim forms for insurance purposes may also inadvertently disclose medical information and should be separated from personnel files in order to maintain confidentiality.
Employees have the right to obtain certain medical information. Under the Occupational Safety and Health Act (OSH Act), employers are required to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents which are required to be monitored or measured under the OSH Act. These regulations provide employees and their representatives with an opportunity to observe the monitoring and measuring of toxic materials and to have access to certain medical records.
The ADA requires that public and private employers maintain strict confidentiality procedures regarding medical information. Even if information does not directly identify an individual, his or her identity may be discernible based on absence records or other information. Once confidential medical information is discernible, it may be subject to broad dissemination. This is especially true with regard to the most sensitive medical information, such as mental health, HIV, or other serious illness. Because the potential for harm to the employee and to the company is so high, employers should carefully monitor access to confidential medical information and should establish procedures to ensure that this type of information is disseminated only as necessary.
Written policies regarding personnel files
Employers can avoid problems and ensure supervisors and HR personnel are consistent when maintaining files and monitoring employee access by instituting and following a written policy. The policy should state the circumstances under which employees will be allowed to review their personnel file and should provide for some appropriate form of supervision for these situations. This will ensure that the integrity of the personnel records is maintained.
Personnel files should be periodically reviewed and updated with new information. As noted above, every record relating to a particular employee does not belong in the personnel file. Some records, such as those reflecting confidential medical information, must be kept separately. Proper documentation is an invaluable tool in defending a company’s decisions relating to a particular employee. Poor documentation, however, can be more detrimental to an employer than none at all. Therefore, employers should ensure that all documentation relating to an employee is accurate, concise, and factual, and employers should keep in mind that any documents created may later be discoverable in future litigation.
Further, the Illinois Personnel Record Review Act requires employers, upon an employee’s request (written or verbally), permit the employee to inspect any personnel documents which are, have been or are intended to be used in determining that employee’s qualifications for employment, promotion, transfer, additional compensation, discharge or other disciplinary action. The right to the employee or the employee's designated representative to inspect his or her personnel records does not apply to:
- letters of reference
- any portion of a test document
- materials relating to the employer's staff planning
- information that would constitute an unwarranted invasion of the other person's privacy employers who do not maintain any personnel files
- records relevant to any other pending claim between the employer and the employee
- investigatory or security records.
The employer shall grant at least two inspection requests by an employee in a calendar year when requests are made at reasonable intervals, unless otherwise provided in a collective bargaining agreement. The employer shall provide the employee with the inspection opportunity within seven working days after the employee makes the request or if the employer can reasonably show that such deadline cannot be met, the employer shall have an additional seven days to comply.
Maintaining personnel files
The act does not require that an employer maintain personnel documents, however, an employer that does not do so may be prevented from using information contained in personnel-related documents in any judicial or quasi-judicial proceeding. In addition, if an employer maintains personnel files but fails to produce requested personnel documents, then the employer may not be able to use those documents in these types of proceedings.