Tips For Complying with Michigan’s Sunshine Law Regarding Employee Records

Most Michigan HR professionals know something about the Bullard Plawecki Employee Right to Know Act. It has been around since 1978 (PA 397) and permits current and former employees the right to review what is in their personnel file. This type of law is often referred to as a sunshine law.

ASE recently received some inquiries about how an employer should comply with the act. This article aims to remind our members about this law and what it says.

First, pretty much every employer in the State of Michigan is covered by this law. However, if you have three or less employees, you are not covered by it.

Personnel files or records are defined broadly. It does have certain exceptions, however. An employer has to provide access to personnel records that identify an employee to the “extent the record is used or has been used or may affect be used to that employee’s qualifications for employment, promotion, transfer, additional compensation, or disciplinary action.”

The exceptions to the above are:

1. Employee references supplied to an employer if the identity of the person making the reference would be disclosed.
2. Materials related to the employer’s staff planning with respect to more than one employee, including salary increases, management bonus plans, promotions, and job assignments.
3. Medical reports and records made or obtained by the employer if the records or reports are available from the doctor or medical facility.
4. Information of a personal nature about a person other than the employee if the disclosure of that information would constitute clearly unwarranted invasion of the other person’s privacy.
5. Information that is kept separately from other records that relates to an investigation by the employer of a criminal activity by the employee that may result in loss or damage to the employer’s property or disruption of the employer’s business.
6. Records limited to grievance investigations that are kept separately.
7. Records maintained by an educational institution that are directly related to a student and are considered to be education records.
8. Records kept by an executive, administrative, or professional employee that are kept in the sole possession of the maker of the record and are not accessible or shared with other persons. However, a record concerning an occurrence or fact about an employee may be entered into a personnel record if entered not more than six months after the date of the occurrence or the date the fact became known. This is the supervisor’s notes exception.

Also remember, particularly in the politically charged time, that employers may not collect or retain records on any employee’s associations, political activities, publications, or communications concerning non-employment activities, unless the employee submits the information in writing or authorized the employer to gather or keep the information in written form. And no, a policy requesting this information be given “voluntarily” would not be acceptable given the implied threat of a lost job or not being hired underneath such request. But also note this prohibition does not apply when the political or other activities occur on the employer’s premises or during work hours that interfere with the worker’s or co-worker’s job performance.

The employer must provide an employee who makes a written request to periodically review the employee’s personnel file as described above. Periodically is generally considered to be not more than twice per calendar year.

See a sample review request form here.

The review must be at a location reasonably near the employee’s place of employment and during normal working hours. This review time must be during a time the employee does not have to take time off from work. Another mutually convenient time may be scheduled.

The employee must be allowed to obtain a copy of the information in the personnel file. An employer may charge a fee for the cost of copying. The fee must be “limited to the actual incremental cost of copying.”

Should there be disagreement as to what is in the personnel file, the employee and employer may agree to the removal or correction of that information. If no agreement as to whether the information is correct or should be removed can be made, the employee must be permitted to submit a written statement explaining the employee’s position. This employee addendum is limited to five sheets of 8 ½” x 11” paper. This new information must be divulged to a third party if provided and is part of the file as long as the original information being disputed is part of the file.

If either party puts false information into the personnel file, the employer or employee has legal action as a remedy per the law.

How long does an employer have to comply with a written request? This is left open, but two weeks is considered to be a “reasonable time” to comply.

Failure to comply with the law will open the employer up to legal action in circuit court. Failure to comply with a court order will result in contempt proceedings, and the court will award the prevailing party actual damages plus cost. If the non-compliance is found to be willful, the award will be $200 plus costs, reasonable attorney’s fees, and actual damages.

We hope this updates everyone on this law. If you have any questions, ASE members can contact ASE’s Research Hotline at hrhotline@aseonline.org.

By Michael Burns, courtesy of SBAM-approved partner, ASE. Sources: 1. CCH HRM State Laws Michigan, 2. BNA. Michigan Law Summary

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