Minnesota Personnel Records Act – Frequently Asked Questions
The Minnesota Personnel Record Review and Access Act (“Minnesota Personnel Records Act” or “MPRA”) regulates employee personnel files maintained by Minnesota employers. If you are a Minnesota employer, or an employee with questions about your rights under the MPRA, please refer to the information below or contact one of the Minnesota employment attorneys at Trepanier MacGillis Battina P.A.
Q. What are an employee’s rights to review their personnel record under the Minnesota Personnel Records Act?
A. Upon written request by an employee, the employer shall provide the employee with an opportunity to review the employee’s personnel record. An employer is not required to provide an employee with an opportunity to review the employee’s personnel record if the employee has reviewed the personnel record during 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. Minn. Stat. § 181.961, subd. 1.
Q. Which individuals are covered by the Minnesota Personnel Records Act?
A. “Employees” are covered by the MPRA. Under the Act, an “employee” means a person who performs services for hire for an employer, provided that the services have been performed predominately within this state. The term includes any person who has been separated from employment for less than one year. The term does not include an independent contractor. Minn. Stat. § 181.960, subd. 2.
Q. Are former employees covered by the Minnesota Personnel Records Act?
A. Former employees are covered by the Act provided that they have been separated from employment for less than one year. Minn. Stat. § 181.960, subd. 2.
Q. Are independent contractors covered by the Minnesota Personnel Records Act?
A. No, independent contractors are not covered by the Act. Minn. Stat. § 181.960, subd. 2.
Q. Which employers are covered by the Minnesota Personnel Records Act?
A. With respect to granting access to an employee to review his/her personnel record, an “employer” includes a person who has one or more employees. Minn. Stat. § 181.961, subd. 4.
For other purposes, the general definition of “employer” under the MPRA means a person who has 20 or more employees. See Minn. Stat. § 181.960, subd. 3.
Employer does not include a state agency, statewide system, political subdivision, or advisory board or commission that is subject to chapter 13. See Minn. Stat. § 181.960, subd. 2.
Q. Are public sector employers covered by the Minnesota Personnel Records Act?
A. Under the Act, the term “employer” employer does not include a state agency, statewide system, political subdivision, or advisory board or commission that is subject to the Minnesota Government Data Practices Act. Minn. Stat. § 181.960, subd. 2.
The Data Practices Act deems all government data shall be public unless otherwise classified by law or statute. Minn. Stat. § 13.03; Demers v. City of Minneapolis, 468 N.W.2d 71, 73 (Minn. 1991).
Q. How long does the employer have to provide access to the personnel file?
A. The Act provides that the employer shall comply with a written request from the employee, provided the employee meets the request requirements, no later than seven (7) working days after receipt of the request if the personnel record is located in the State of Minnesota, or no later than fourteen (14) working days after receipt of the request if the personnel record is located outside of Minnesota. Minn. Stat. § 181.960, subd. 2.
Q. What records must the employer provide to the employee as part of the personnel record?
A. Under the Act, “personnel file,” to the extent they are maintained by the employer, means the following:
See Minn. Minn. Stat. § 181.960, subd. 2. Documents that are within employment history are considered part of the employee’s personnel record. Amin v. Flagstone Hospitality Mgmt., L.L.C., 2005 U.S. Dist. Lexis 29022 (D. Minn. 2005).
Q. Are employers required to maintain certain types of personnel records?
A. No. The Minnesota Personnel Records Act, by itself, does not impose any obligation on employers to maintain certain types of records. Rather, the Act requires employers to provide employees with access to those records that are maintained by the employer. Other federal and state laws, however, require employers to maintain a variety of records related to job applicants and employees. A summary of those laws is beyond the scope of this article.
Q. What records are not considered part of the personnel record?
A. Under the Act, the following documents are not considered part of the employee’s personnel record and the employer is not required to provide the employee with access to them:
Q. How often can current employees review their personnel record?
A. An employer is not required to provide an employee with an opportunity to review the employee’s personnel record if the employee has reviewed the personnel record during 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. Minn. Stat. § 181.961, subd. 1.
Q. May the employer charge a fee for the copy?
A. No, the employer may not charge a fee for the copy. Minn. Stat. § 181.961, subd. 2(d).
Q. May the employer provide the employee with access to a copy of the personnel record, rather than the original?
A. Yes, with respect to current employees, the personnel record or an accurate copy must be made available for review by the employee during the employer’s normal hours of operation at the employee’s place of employment or other reasonably nearby location, but need not be made available during the employee’s working hours. Minn. Stat. § 181.961, subd. 2(b).
Q. May a former employee review their personnel record?
A. 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. Minn. Stat. § 181.961, subd. 1. Additionally, former employees are covered by the Act provided that they have been separated from employment for less than one year. Minn. Stat. § 181.960, subd. 2.
Q. When must the employer provide a copy to the employee or former employee?
A. After the review, and upon the employee’s written request, the employer shall provide a copy of the record to the employee. Minn. Stat. § 181.961, subd. 2(b).
With respect to employees who are separated from employment, upon the employee’s written request, the employer shall provide a copy of the personnel record to the employee. Providing a copy of the employee’s personnel record to the employee satisfies the employer’s responsibility to allow review of the record. Minn. Stat. § 181.961, subd. 2(c).
Q. Does the employee’s request have to be in writing?
A. Yes, the MPRA mandates that the employer shall provide the employee with an opportunity to review the employee’s personnel record upon written request. Minn. Stat. § 181.961, subd. 1.
Q. Where must the employer make the personnel record available for inspection?
A. With respect to current employees, the personnel record or an accurate copy must be made available for review by the employee during the employer’s normal hours of operation at the employee’s place of employment or other reasonably nearby location but need not be made available during the employee’s working hours. The employer may require that the review be made in the presence of the employer or the employer’s designee. Minn. Stat. § 181.961, subd. 2(b).
Q. Can the employer simply provide the employee with a copy of the personnel record rather than providing access to review the personnel file?
A. For current employees, the answer is unclear. The MPRA provides, with respect to current employees, the personnel record or an accurate copy must be made available for review by the employee during the employer’s normal hours of operation at the employee’s place of employment or other reasonably nearby location. Minn. Stat. § 181.961, subd. 2(b). This language strongly implies that the employer must allow physical access to the personnel record (or an accurate copy of it) rather than simply delivering a copy to the employee. The MPRA goes on to provide that, after the review and upon the employee’s written request, the employer shall provide a copy of the record to the employee. Again, this language implies that providing a copy is something that occurs after the employee receives physical access. In practice, many employers simply deliver a copy of the personnel record to the employee (often by e-mail). In such cases, the employer should seek to obtain the employee’s consent to receive the personnel record in this fashion.
For former employees, yes, providing a copy of the employee’s personnel record to the employee satisfies the employer’s responsibility to allow review. Minn. Stat. § 181.961, subd. 2(c).
Q. Can the employer have a witness present during the employee’s review?
A. Yes, the employer may require that the review be made in the presence of the employer or the employer’s designee. Minn. Stat. § 181.961, subd. 2(b).
Q. Can the employer deny the employee’s request to review the personnel record?
The employer may deny the employee the right to review the employee’s personnel record if the employee’s request to review is not made in good faith. The burden of proof that the request to review is not made in good faith is on the employer. Minn. Stat. § 181.961, subd. 3.
An employer is not required to provide an employee with an opportunity to review the employee’s personnel record if the employee has reviewed the personnel record during the previous six months. Minn. Stat. § 181.961, subd. 1.
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. Minn. Stat. § 181.961, subd. 1.
Q. What if the employee disputes information contained in the personnel record?
A. If an employee disputes specific information contained in the employee’s personnel record:
The employee’s position statement may not exceed five written pages. The position statement must be included along with the disputed information for as long as that information is maintained in the employee’s personnel record. A copy of the position statement must also be provided to any other person who receives a copy of the disputed information from the employer after the position statement is submitted. Minn. Stat. § 181.962, subd. 1.
Q. May a communication by the employee of information obtained through a review of the personnel record be the subject of a defamation action?
A. No communication by an employee of information obtained through a review of the employee’s personnel record may be made the subject of any action by the employee for libel, slander, or defamation, unless the employee has disputed specific information contained in the personnel record, the employer has refused to agree to remove or revise the disputed information, the employee has submitted a written position statement as required by the Act, and the employer either has refused or negligently failed to include the employee’s position statement along with the disputed information or thereafter provide a copy of the statement to any other person who receives a copy of the disputed information from the employer after the position statement is submitted, or thereafter communicated the disputed information with knowledge of its falsity or in reckless disregard of its falsity. Minn. Stat. § 181.962, subd. 2(a).
A common law civil action for libel, slander, or defamation based upon a communication of disputed information contained in an employee’s personnel record is not prohibited if the communication is made after the employer and the employee reach an agreement to remove or revise disputed information and the communication is not consistent with the agreement. Minn. Stat. § 181.962, subd. 2(c).
Q. May an employer use omitted information from an employee’s personnel file in a legal proceeding?
A. It depends. In some cases, the employer may be prohibited from using information that it failed to provide to the employee in response to the employee’s request for his/her personnel record. The MPRA provides that, 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 the Act 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. Minn. Stat. § 181.963.
Q. When must an employer provide an employee with notice of the employee’s rights under the act?
A. An employer, meaning a person who has 20 or more employees, and not including a state agency, statewide system, political subdivision, or advisory board or commission that is subject to the Minnesota Government Data Practices Act, shall provide written notice to a job applicant upon hire of the rights and remedies provided in the Act. Minn. Stat. § 181.9631.
Q. May a Minnesota employer provide an employee with additional rights to review their personnel record?
A. The Act does not prevent an employer from providing additional rights to employees and does not diminish a right of access to records under the Minnesota Government Data Practices Act. Minn. Stat. § 181.966.
Q. Can employers punish employees for reviewing their personnel record?
A. No. 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 the MPRA. Minn. Stat. § 181.964.
Q. What are the employee’s remedies if the employer does not comply with the Minnesota Personnel Records Act?
A. In addition to other remedies provided by law, if an employer violates the MPRA, the employee may bring a civil action to compel compliance and for the following relief:
Minn. Stat. § 181.965, subd. 1 is limited to remedies and the law only provides relief for actual damages, therefore failure to state a claim for actual damages means there is no legal cognizable claim for relief. Brustad v. Rosas, CX-99-1041, 1999 WL 1256352 (Minn. Ct. App. Dec. 28 th , 1999).
Q. What is the statute of limitations for bringing a claim under the Minnesota Personnel Records Act?
A. Any civil action maintained by the employee under the MPRA must commence within one year of the actual or constructive discovery of the alleged violation. Minn. Stat. § 181.965, subd. 2.
Q. Can the employee recover attorney’s fees and court costs for violation of the Minnesota Personnel Records Act?
A. For a violation of a provision contained in the section prohibiting retaliation, an employee may recover reasonable attorney fees. Minn. Stat. § 181.965, subd. 1(2).
Q. Can the Minnesota Department of Labor and Industry enforce the Minnesota Personnel Records Act?
A. The Minnesota Department of Labor and Industry is responsible for enforcing the MPRA. Minn. Stat. § 181.964.
Q. May the Department assess any fine related to its enforcement of the MPRA?
A. In its enforcement of the MPRA, the Minnesota Department of Labor and Industry may assess a fine of up to $5,000 for a violation of sections 181.960 to 181.964. The fine, together with costs and attorney fees, may be recovered in a civil action in the name of the department brought in the district court of the county where the violation is alleged to have occurred or where the commissioner has an office. The fine provided in the remedies section of the MPRA is in addition to any other remedy provided by law. Minn. Stat. § 181.964.
Contact Our Minnesota Employment Lawyers
If you have questions about the Minnesota Personnel Records Act, need help drafting a request for your personnel records, or need assistance responding to an employee’s request for personnel files, contact one of the Minnesota employment attorneys of Trepanier MacGillis Battina P.A.
______________
About the Author:
Minnesota employment attorney Craig W. Trepanier advises employers and high-level executives, professionals, and salespersons in a broad range of employment law matters, including compliance with the Minnesota Personnel Records Act. Craig also handles a broad range of employment law matters including advice, counseling, and litigation of employment-related issues. Craig may be reached at 612.455.0502 or craig@trepanierlaw.com. Trepanier MacGillis Battina P.A. is a Minnesota employment law firm located in Minneapolis, Minnesota.
