Coughing Up Files

Q: A former employee recently asked for a copy of their personnel file. Do I have to give them a copy? How long do I have to keep personnel files for former employees?  

– Too Much Paper 

Salem, OR

A:  The laws regarding providing access to personnel files tend to vary state by state. Many states, including Oregon, do permit former employees to receive copies of their personnel files. When providing the copy, the manager who is providing the file should include a signed statement indicating that the documents provided represent a true and correct copy of the employee’s personnel file. Answering your question about how long to keep personal files is a trickier proposition. State and federal laws provide different timeframes for different documents.  In your case, Oregon state law requires the personnel file be kept for 60 days after the employee’s separation. The Federal laws enforced by the EEOC requires many personnel records be kept for one year, but certain records must be kept longer – certain payroll information must be kept for three years. Then, there are tort actions that you might have to defend yourself against. In Oregon, the statue of limitations for a breach of contract is six years. Keeping personnel files for seven years is the most prudent course of action. So much for cleaning out those old file cabinets! 

Q:  I am an African-American salesperson and get paid on a commission basis. My manager assigned me a sales territory that is predominantly African-American. When I asked him why I was assigned this territory, he said that he thought that I would better suited serve the type of people who live in this territory, which would provide more commissions for me. I feel like I am being treated differently because of my race. Do I have a case?  

-Pete T.

Oakland, CA

A:   It sure sounds like it. Your employer cannot deprive you or other employees with employment opportunities on the basis of your race. It appears that your employer determined your assignment based on the racial demographics of the sales territory. However, it is possible that the “type of people” in this territory did not refer to race. Before taking any further steps, I suggest having another conversation with your manager to see he would further clarify his comments. If your employer did provide you with a specific sales territory based on your race, it would be a violation of Federal law.  

In 2021, 34.1% of charges filed with the EEOC alleged race discrimination, making race the third most-alleged basis of employment discrimination under federal law after retaliation and disability discrimination.  

(This article was originally published in the column Watercooler Counsel. It has been included here with minor updates.) 

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