Your Minnesota Employer Has Seven Working Days to Hand You Your Personnel File, Free

Two letters, no lawyer, no lawsuit

Minn. Stat. §§ 181.960 to 181.966 — the sections practitioners call the Personnel Record Review and Access Act — give Minnesota a document-production mechanism that runs before there is a case: no complaint, no subpoena, no filing fee, and a deadline shorter than any discovery rule in the state.

The request itself is unadorned. Section 181.961, subd. 1:

Upon written request by an employee, the employer shall provide the employee with an opportunity to review the employee’s personnel record.

Nothing about a reason. Nothing about a dispute. Nothing about a lawyer. The only limit in that subdivision is frequency: an employer need not provide review if the employee reviewed the record in the previous six months, “except that, upon separation from employment, an employee may review the employee’s personnel record once each year after separation for as long as the personnel record is maintained.”

The clocks

Section 181.961, subd. 2(a):

The employer shall comply with a written request pursuant to subdivision 1 no later than seven working days after receipt of the request if the personnel record is located in this state, or no later than 14 working days after receipt of the request if the personnel record is located outside this state.

Current and former employees are handled differently. A current employee reviews the record at the workplace or a reasonably nearby location during normal hours of operation, and may be required to do so “in the presence of the employer or the employer’s designee”; a copy follows on written request. § 181.961, subd. 2(b). A separated employee skips that — “upon the employee’s written request, the employer shall provide a copy of the personnel record to the employee.” § 181.961, subd. 2(c).

Coverage is broad on one side, narrow on the other. “Employer” means “a person who has one or more employees,” so there is no small-business exemption — but the same subdivision excludes “a state agency, statewide system, political subdivision, or advisory board or commission that is subject to chapter 13.” § 181.960, subd. 3. “Employee” reaches “any person who has been separated from employment for less than one year” and excludes independent contractors. § 181.960, subd. 2.

Public employees are on a different statute. Section 181.966 preserves any “right of access to records under chapter 13,” and Minn. Stat. § 13.04, subd. 3, requires a responsible authority to comply “immediately, if possible … or within ten days of the date of the request, excluding Saturdays, Sundays and legal holidays” — while allowing it to “require the requesting person to pay the actual costs of making and certifying the copies.” The private-sector statute forbids a fee. The public one does not.

What is a “personnel record,” and the ten things it is not

Section 181.960, subd. 4, defines the term “to the extent maintained by an employer” as

any application 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.

Then ten exclusions, and the fights live there. Out: written references; education records under FERPA; employer testing results (except a cumulative score); salary-system and staff-planning material; personal data about someone else whose disclosure “would constitute an intrusion upon the other person’s privacy”; privileged or non-discoverable information; medical reports and records; and any portion of a coworker’s statement about the employee’s performance or misconduct “that discloses the identity of the coworker by name, inference, or otherwise.”

Exclusion (7) — supervisor’s notes — is narrower than employers think. It covers written comments or data kept by a supervisor or an executive, administrative, or professional employee, “provided the written comments or data are kept in the sole possession of the author of the record.” Sole possession is the condition. A memo forwarded to human resources is not in the sole possession of its author.

Exclusion (2) — investigation material — expires. Information relating to the investigation of a violation of a criminal or civil statute by an employee, or of employee conduct for which the employer may be liable, sits outside the personnel record “unless and until” two things are both true: the investigation is completed (and, for an alleged criminal violation, the prosecutor has said no action will be taken or proceedings and appeals are exhausted), and “the employer takes adverse personnel action based on the information contained in the investigation records.” An employer that fires someone on the strength of an internal investigation has converted that file into a record the former employee can demand.

The provision that gives the statute teeth

Section 181.963 is one sentence long:

Information properly belonging in an employee’s personnel record that was omitted from the personnel record provided by an employer to an employee for review pursuant to section 181.961 may not be used by the employer in an administrative, judicial, or quasi-judicial proceeding, unless the employer did not intentionally omit the information and the employee is given a reasonable opportunity to review the omitted information prior to its use.

Three things follow. The trigger is the request — no request, no preclusion. The bar reaches “an administrative, judicial, or quasi-judicial proceeding,” not only a lawsuit. And the escape hatch has two elements joined by “and”: the omission must have been unintentional and the employee must get a reasonable opportunity to review the material first.

Disputing what is in there

Section 181.962, subd. 1(a), lets the parties agree to remove or revise disputed information, and if they do not agree, lets the employee “submit a written statement specifically identifying the disputed information and explaining the employee’s position.” Paragraph (b) sets the terms: five written pages at most, kept with the disputed information “for as long as that information is maintained,” and copied to anyone who receives the disputed information from the employer after the statement is submitted.

Subdivision 2 builds a defamation structure on top of that process, and it runs against the employee who does nothing. An employer’s communication of personnel-record information after the employee has exercised the review right cannot support a common-law libel, slander, or defamation action unless all four conditions in paragraph (b) are met: the employee disputed specific information; the employer refused to remove or revise it; the employee submitted a written position statement; and the employer refused or negligently failed to include or forward that statement, or thereafter communicated the disputed information “with knowledge of its falsity or in reckless disregard of its falsity.”

Remedies, and the asymmetry that is the point

Section 181.964 prohibits retaliation in broad terms: an employer “shall not discharge, discipline, penalize, interfere with, threaten, restrain, coerce, or otherwise retaliate or discriminate against an employee for asserting rights or remedies provided in sections 181.960 to 181.965.”

Section 181.965, subd. 1, prices the two violations very differently:

(1) for a violation of sections 181.960 to 181.963, actual damages only, plus costs; and

(2) for a violation of section 181.964, actual damages, back pay, and reinstatement or other make-whole, equitable relief, plus reasonable attorney fees.

Refusing to produce the file is a cheap violation: actual damages, usually close to nothing, and no fees. Punishing the person who asked is the expensive one, and the only one that shifts fees.

Two provisions sit outside that private action. Section 181.9631 requires an employer to “provide written notice to a job applicant upon hire of the rights and remedies provided in sections 181.960 to 181.965.” Section 181.9641 gives the Department of Labor and Industry enforcement authority and permits a fine “of up to $5,000 for a violation of sections 181.960 to 181.964.”

The clock is short. Section 181.965, subd. 2: “Any civil action maintained by the employee under this section must be commenced within one year of the actual or constructive discovery of the alleged violation.”

The second letter

Different statute, different clock, same envelope. Minn. Stat. § 181.933, subd. 1:

An employee who has been involuntarily terminated may, within 15 working days following such termination, request in writing that the employer inform the employee of the reason for the termination. Within ten working days following receipt of such request, an employer shall inform the terminated employee in writing of the truthful reason for the termination.

Fifteen working days is a forfeiture, not a guideline; the statute gives no right to the answer after it passes. Subdivision 2 is the trade the Legislature offered employers: the statement furnished under subdivision 1 cannot “be made the subject of any action for libel, slander, or defamation by the employee against the employer.”

The value of that written reason is the fixing of it — a stated ground on the record in the first month, which is where the discrimination calendar and the whistleblower analysis both start. Whether a particular document belongs in a personnel record is a question about that document, and answering it is not what this page does.