Employee access to personnel files

[vickyp]

#80863

Forum: Community

We store employee information on a Human Resources Information System. The HRIS saves all required payroll records and employee contact information. For each employee, there is also a File section and an HR Incidents section.
The Employee File section includes uploaded documents: Recruiting documents, records relating to job offers, promotion, demotion, transfer and layoffs, disciplinary documentation, performance review documents, and termination documentation.
The HR Incident section includes an area for Managers to add dated notes under the categories of coaching, general notes, performance management, progressive discipline, health & safety.
Under BC legislation and our collective agreement, employees have the right to view their personnel file.
Does it still meet legislative requirements if the file is digital?
Are all records- including the above mentioned Employee File and the manager’s notes under HR Incidents- privy to the employee? Or can those notes recorded in the HR Incidents section remain as manager’s notes that do not need to be shared with the employee?
Our dilemma is that we want to use the managers notes section of HRIS as it’s centralized for managers to document our performance concerns that we have spoken to employees about (our verbal warning), but if it legally forms part of their personnel file, then we would need to be careful what we say because they have a right to see it.

Here’s some background information from the collective agreement/ personnel policy if that helps:
parts. Does this help?

10.3Right to Grieve Other Disciplinary Action
Disciplinary action grievable by the employee shall include written censures and letters of reprimand. An employee shall be given a copy of any such document placed on the employee’s file which might be the basis of disciplinary action. Should an employee dispute any such entry in his/her file, he/she shall be entitled to recourse through the grievance procedure and the eventual resolution thereof shall become part of his/her personnel record. The Employer agrees not to introduce as evidence in any hearing any document from the file of an employee, the existence of which the employee was not aware at the time of filing. Any such document shall be removed from the employee’s personnel file after the expiration of eighteen (18) months from the date it was issued provided there has not been any further infraction.

10.4- Personnel File
(a) Employee appraisals and reports are subject to the grievance procedure should an employee dispute any such entry on his/her file.
(b) An employee, or the President of the Union or his/her designate with the written authority of the employee, shall be entitled to review the employee’s personnel file(s), both paper and, if applicable, electronic, in the office in which the file is normally kept. The employee or the President, as the case may be, shall give the Employer adequate notice prior to having access to such file(s). The Employer will provide copies of the file entries as requested.
(c) Information in personnel files will be kept confidential and access will be given only to those personnel who require the information in the course of their duties.

[vickyp]

#80862

OK, just so we’re clear, this is a personal opinion, not legal guidance.
1. Electronic Access: PIPA doesn’t specify the format of the personal information; Sec. 10.4(b) says the employee is “entitled to review” the info in paper or electronic format but doesn’t say that you must generate paper records of info kept electronically. In other words, there are no clear rules re: format. As a practical matter, if the employee or his rep. can’t make sense of the elex records, I WOULD provide them in paper form so as to keep with the spirit of Sec. 10.4(b) and PIPA which is all about providing for MEANINGFUL access, assuming, of course, that there isn’t some kind of major hitch, e.g., costs in generating the paper records.
2. Shield from Disclosure: Under Sec. 23(3) of PIPA the duty to provide access doesn’t cover:
(a)information protected by solicitor-client privilege;
(b) information whose disclosure would reveal confidential commercial information that if disclosed, could, in the opinion of a reasonable person, harm the competitive position of the organization;
(c) information collected or disclosed without consent, as allowed under section 12 or 18, for the purposes of an investigation and the investigation and associated proceedings and appeals have not been completed; (there is no (d))
(e) information collected or created by a mediator or arbitrator in the conduct of a mediation or arbitration for which he or she was appointed to act under a collective agreement,)under an enactment, or by a court;
(f)information in a document that is subject to a solicitor’s lien.
Under (4), you MAY NOT disclose info if the disclosure:
(a)could reasonably be expected to threaten the safety or physical or mental health of an individual other than the individual who made the request;
(b)can reasonably be expected to cause immediate or grave harm to the safety or to the physical or mental health of the individual who made the request;
(c) would reveal personal information about another individual;
(d)would reveal the identity of an individual who has provided personal information about another individual and the individual providing the personal information does not consent to disclosure of his or her identity.
Unfortunately, none of these situations covers “manager’s notes.” However, the 22(4)(c) or (d) exceptions for disclosures affecting other employees or third parties who didn’t consent to disclosure may come in handy
One last thing: The part of the collective agreement about nobody being allowed to see personal info unless their job requires it doesn’t cancel out employees’ right of access to their OWN personal info under PIPA. But again, to the extent that the info includes stuff about third parties, it’s shielded.
Hope that helps and good luck. Glenn
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