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Privacy – Personnel Files – Disclosure

A job applicant that may consider lying in order to protect herself against an embarrassing or detrimental disclosure should keep in mind that the disclosure may come about anyway during the employer’s background check or an investigation by a credit-reporting agency. In fact, the purposeful submission of misinformation on an application is viewed by many employers as an adequate reason for refusing to hire an applicant or for firing an employee.

If the employer is a federal agency, the Privacy Act of 1974 delineates the confidentiality of employment records. The Privacy Act allows disclosure of federal-agency employee records without the employee’s consent only for “routine uses.” Disclosure is also allowed in answer to the written request of a law enforcement agency or in fulfillment of a court order. Some states have privacy statutes analogous to the Privacy Act, such that similar protection is afforded to employment records held by state and local agencies. Other states have enacted special statutes protecting the confidentiality of state employees’ records. In some situations, protection of confidentiality is supplied by union contracts.

If none of the above laws or contracts are in effect, than the protection of confidentiality rests solely with the discretion of the employer. The exercise of such discretion is absolutely crucial, given the fact that employment files usually are full of much more than job-related information. Employment files often contain an employee’s personal information in various areas such as medical, sexual, family, financial, and political. They may even contain the subjective comments of colleagues and supervisors. Thus, the confidentiality of all this personal data may lie entirely with the employer.

Public Sector

Most employees of government agencies have a right of access to at least some of their employment records. This right may be given by statute or by regulation. The Privacy Act gives current and former employees of federal agencies a right of access to their records as well as a right of correction. In those states that have analogous open records acts, access and correction rights are extended to state and local government employees. State civil service regulations also normally have provisions as to record access. All of these laws and regulations differ in their designations of the types of records that employees cannot see. Common exceptions include medical records, performance evaluations, test results, and security files.

Private sector

Access rights to employment records are only sometimes given to private sector employees. As previously mentioned, there is not a national law that grants workers the right to see files that concern them which are held by employers. Some states have enacted statutes giving employees the right to see, copy, and correct their personnel records.

Additionally, a number of major corporations have implemented in-house privacy policies giving employees access to their records. These policies also tend to bestow the right to correct erroneous data and to limit disclosures to outsiders. Employees that work for such corporations should find that seeing their own personnel records is a routine matter. Usually, they only need to ask their supervisor or their human resources department for access. Despite all of these laws, regulations, and policies, there remains a considerable amount of employees that are deprived of access to their own records.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.