Whether you’re an employer/business owner in Ohio, or employee, understanding the rights and obligations when it comes to employee, personnel files can save you time and money down the road. This article examines what employees and employers should know as it pertains to personnel files, medical records, certain wage and hour records, as well as employers’ rights and other important considerations.
What Does Ohio Law Say About Personnel Files?
An employer’s obligations to maintain employee personnel files and make them available for inspection are largely governed by state law. In Ohio, employers are not required to maintain personnel files, and thus, neither current nor former employees have a legal right to access their complete personnel files or records. Yet, even though certain disclosures are not mandatory, Ohio law requires employers to provide employees with a copy of any medical report obtained by the employer (see R.C. 4113.23(A)) and to maintain and provide copies of certain wage and hour records (see R.C. 4111.14(G)).
What Information Must an Employer Provide
Specifically, R.C. 4113.23 provides that no employer, physician, health care professional, hospital or laboratory that contracts with an employer to provide medical information pertaining to an employee may refuse a written request by an employee to furnish a copy of the medical report obtained hereby. This requirement extends to any medical report required by the employer as a condition of employment or arising out of any injury or disease related to the employee’s employment.
The employer may require the employee to pay the cost of furnishing copies of the medical reports but cannot charge more than twenty-five cents for each page of a report. Significantly, an employer who refuses to furnish reports to which an employee is legally entitled may be found guilty of a minor misdemeanor for each violation. The Ohio Bureau of Workers’ Compensation is charged with enforcing this statutory requirement.
Further, R.C. 4111.14(G) provides that in accordance with Section 34(a) of Article II of the Ohio Constitution, an employer must provide certain information free of charge to an employee or person acting on behalf of an employee (such as a collective bargaining representative, the employee’s attorney, parent, guardian, or legal custodian) upon request. Such information includes the employees’:
- Name
- Address
- Occupation
- Pay rate
- Hours worked daily
- Amount paid to the employee
Such information does not include information pertaining to hours worked by individuals that are not governed by the Fair Labor Standards Act, or individuals who are not subject to R.C. 4111.03’s overtime pay requirements.
When such a request is made, the employer must provide the requested information within thirty (30) business days unless:
1) the employer and the employee (or person acting on behalf of the employee) agree to some alternative time period, or
2) the thirty-day period would cause hardship for the employer, in which case the employer must provide the requested information as soon as practicable.
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The Importance of a Clear Policy
Because of the many legal nuances, businesses should have clear personnel file policies to ensure consistency and compliance with applicable laws. When implementing its policy, the employer should consider:
- whether the requests are required to be made in writing
- whether the right to inspect personnel files extends to former employees
- how long employers are required to keep the personnel files of former employees
- the types of personnel file documents employees are entitled to inspect
- whether employees may obtain a copy of their personnel files
- how quickly employers must respond to employees’ requests to inspect their personnel files
- whether there are limitations on the number of requests that can be made within a specified time period.
Gertsburg Licata strongly recommends that employers require all personnel file access requests to be made in writing. The employer may require that the employee provide a signed and notarized written request that reasonably specifies the particular information being requested. Or, employers may consider maintaining a written form for employees to use when requesting access to their personnel records, which can then be given to the employee when they make a verbal request to view their records.
Employers’ Rights and Additional Considerations
Employers must also take reasonable measures to ensure that the party requesting the file is, in fact, the employee or an authorized representative of the employee. It is good policy for an employer to ask for identification or to use other reasonable methods to confirm the identity of the employee or representative. In responding to a personnel file inspection request, the employer must also be careful to exclude information pertaining to any other employees.
Employers must decide whether to provide direct access to a current employee’s personnel file or to provide a copy. To the extent the employee is allowed direct access, the employer should be present during the employee’s on-site inspection of the personnel record to ensure that no files are altered or removed. If the employee is provided with copies, the copies should be made by the employer to ensure that the contents of the file remain fully intact. As indicated above, employers have the right to charge employees a reasonable amount for copying the personnel records (with the exception of wage and hour records).
As a final consideration, both unionized and nonunionized employers must ensure that they comply with the National Labor Relations Act when implementing personnel record policies, which may require employees to use certain forms to access their personnel records or files. Therefore, the employer should consult the NLRA when instituting any personnel file policies.
In summary, complete employee personnel file maintenance and production may not be required in Ohio, but due to the various nuances and compliance concerns pertaining to certain records, the employer should consider consulting with an attorney to determine what policy is best for them, and to avoid running afoul of any state or federal legal requirements.
You may also be interested in these related articles:
- To Keep, or Not to Keep: Deciding How Long to Retain Employee Records, by Max Julian
- How Long is Long Enough? Timelines for Business Recordkeeping, by Alex Gertsburg
Zena Elliott is a Senior Attorney at Gertsburg Licata, brings a wealth of legal expertise to her role, having served as a Senior Assistant Attorney General for the State of Ohio and amassed over 25 years of private practice experience. Specializing in litigation, employment and worker’s compensation, as well as estate planning and probate, Zena has represented a diverse clientele, including individuals, entities, and public employers. Her extensive background includes jury trials involving workers’ compensation appeals. Beyond her legal career, Zena served a 4-year term on the Board of Education for the Aurora City School District and holds a minor and long-term sub-teaching license in Spanish. She enjoys tennis, skiing, and kayaking outside of the office. For legal matters, Zena can be contacted at [email protected] or 216-573-6000 x7010.
Gertsburg Licata is a national, full-service business law and strategic advisory firm offering a full range of legal services. Call 216-573-6000 or contact us here.
This article is for informational purposes only. It is merely intended to provide a very general overview of a certain area of the law. Nothing in this article is intended to create an attorney-client relationship or provide legal advice. You should not rely on anything in this article without first consulting with an attorney licensed to practice in your jurisdiction.
