Colorado Law Requires Employers to Provide Access to Personnel Files
In 2016, Colorado passed a new law that requires private companies, except for employees of certain banking institutions, to allow employees to access their personnel files at least once per year. This is a right that public sector employees have had for years under the Colorado Open Records Act.
Under the law, the legislature recognized that it is the public policy of Colorado that employees have access to their personnel policies maintained by their current and former employers. The law, set forth at C.R.S. § 8-2-129, provides, in part:
EVERY EMPLOYER SHALL, AT LEAST ANNUALLY, UPON THE REQUEST OF AN EMPLOYEE, PERMIT THAT EMPLOYEE TO INSPECT AND OBTAIN A COPY OF ANY PART OF HIS OR HER OWN PERSONNEL FILE OR FILES
AT THE EMPLOYER’S OFFICE AND AT A TIME CONVENIENT TO BOTH THE EMPLOYER AND THE EMPLOYEE. A FORMER EMPLOYEE MAY MAKE ONE
INSPECTION OF HIS OR HER PERSONNEL FILE AFTER TERMINATION OF EMPLOYMENT. AN EMPLOYER MAY RESTRICT THE EMPLOYEE’S OR FORMER EMPLOYEE’S ACCESS TO HIS OR HER FILES TO BE ONLY IN THE PRESENCE OF A PERSON RESPONSIBLE FOR MANAGING PERSONNEL DATA ON BEHALF OF THE EMPLOYER OR ANOTHER EMPLOYEE DESIGNATED BY THE EMPLOYER.
THE EMPLOYER MAY REQUIRE THE EMPLOYEE OR FORMER EMPLOYEE TO PAY THE REASONABLE COST OF DUPLICATION OF DOCUMENTS.
Thus, under the law, an employer must allow an employee to inspect and obtain a copy of any part of the employee’s personnel file once per year. A former employee may only inspect his or her personnel file once after termination of employment.
The law does not allow current or former employees to inspect all documents that could conceivably relate to their employment. The term “personnel file” is defined as “the personnel records of an employee … 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.” See C.R.S. § 8- 2-129(1)(c). The term is specifically defined to exclude certain categories of documents, as follows: “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; documents or records pertaining to confidential reports from previous employers of the employee; or an active criminal investigation, an active disciplinary investigation by the employer, or an active investigation by a regulatory agency.” It also does not include any information in a document or record that identifies any person who made a confidential accusation, as determined by the employer, against the employee who makes the request for his or her records. Id.
Finally, the new law does not require employers to create or maintain personnel files for their employees or to retain personnel files for a specific period of time after the employment relationship ends. Nor does the law create a private right of action for employees alleging a violation of the law.