Summary: Current employees of private sector employers in Colorado have been granted the right to inspect and obtain a copy of their personnel files at least one time per year. Former employees have been granted the right to inspect their personnel files one time after the termination of their employment.
Effective Date: January 1, 2017
Coverage: All employers with employees working in Colorado.
Actions Required for Employers:
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Review current personnel file retention policies;
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Separate from the personnel file any information that is expressly excluded from the law’s definition of “personnel file”;
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Create and implement a standardized process for responding to and granting current and former employees access to their personnel files; and
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Contact your Human Resources Business partner if you have any questions.
Governor John W. Hickenlooper has signed into law new requirements specifying when and how private-sector employers must respond to their employees’ requests for inspection and copying of their personnel files. Prior to this law, which takes effect January 1, 2017, Colorado had no law granting private-sector employees access to their personnel records.
What Are Your Obligations?
Upon a current employee’s request, an employer must allow that employee to inspect and obtain a copy of any part of the employee’s personnel file at least once annually. A former employee, however, may make only one inspection of his or her personnel file after termination of employment.
The employee must inspect and obtain his or her personnel file at the employer’s office and at a time convenient to both the employer and the employee. The new law also permits an employer to restrict an employee’s review of his or her personnel file to be only in the presence of an individual designated by the employer. The employer also may require the employee or former employee to pay the reasonable cost of duplication of documents.
The new law does not require employers to create, maintain, or retain a personnel file on an employee or former employee. It does not require an employer to retain for a specific period of time documents that are or were contained in an employee’s personnel file. It also does not create a private right of action for employees alleging violations of the law.
What Are Personnel Files?
The law defines “personnel file” as those 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.” The law excludes the following from the definition of “personnel file”:
1. Documents or records required to be placed or maintained in a separate file from the regular personnel file by federal or state law or rule;
2. Documents or records pertaining to confidential reports from previous employers of the employee;
3. Documents or records pertaining to an active criminal investigation, an active disciplinary investigation by the employer; or an active investigation by a regulatory agency; and
4. Information in a document or record that identifies any person who made a confidential accusation against the employee who requests his or her personnel file.
The new law does not apply to public employees because they have access to their personnel files under the Colorado Open Records Act. Additionally, the law does not apply to financial institutions chartered and supervised under state or federal law, including banks, trust companies, savings institutions, and credit unions.
Employers who are subject to the new law should familiarize themselves with the law’s requirements and review their current record retention policies. Once familiar with the law’s requirements, employer’s should (1) separate those items that are excluded from the law’s definition of “personnel file” from their files; (2) create and implement a standard procedure for responding to current and former employees’ requests for access to their personnel files; and (3) contact your Human Resources Business Partner if you have any questions.