What the statutes mean

You are not required to maintain personnel records. However, if you do, each of your employees has the right to review their records twice a year. You do not have to tell them that they have this right. They may inspect any document used to determine

– their qualifications for employment
– promotion
– transfer
– salary increases
– disciplinary action
– termination

If you required the employee to have a physical, they have a right to see the health care records that are in their personnel file. You must provide the records to the employee within 7 working days of their request. You are not required to pay the employee for the time spent reviewing the records.

If your employee disagrees with any information contained in their personnel records, you can agree with the employee to remove or correct the disputed information. If you can not reach an agreement, the employee may submit a written statement explaining their position. You must attach their statement to the disputed portion of the personnel record. The employee’s statement must be included whenever that disputed portion of the personnel record is released to a third party.

You do not have to release any of the following information from the personnel file:

• Records relating to the investigation of possible criminal offenses.
• Letters of reference
• Any portion of a test document, except for test scores
• Materials used by you for management purposes, including future plans for salaries, bonuses or other benefits, promotions, job assignments or other information used for planning purposes.
• Information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of the other person’s privacy.
• Any records relevant to any other pending claim between you and the employee that may be discovered in a judicial proceeding.

The employee also has a right to request a copy of their records. You may charge a reasonable fee for providing copies of records, but the fee may not exceed the actual cost of reproduction. If you violate these laws you may be fined $10 - $100 for each violation. Each day of refusal or failure to comply with the law’s requirements is a separate violation.

Practical advice

The most commonly disputed items in an employee’s personnel file are performance reviews that have not been read by the employee or notes describing a performance error. Disputes occur more frequently when office managers keep personnel files that the doctor does not regularly review. If an employee finds information in their personnel file that they believe to be inaccurate, their morale and performance may be negatively impacted. To avoid these problems, follow these steps:

• Do not keep any information in the employee’s file that you do not wish them to see.
• If you have any managers or supervisors with personnel responsibilities, require them to show you any negative information before it is placed in the employee’s personnel record.
• Review an employee’s performance at least once a year.
• Performance problems are best dealt with they occur. “Saving up” negative information is counterproductive. The sooner the situation is discussed with the employee, the sooner the employee’s performance can improve.
• If your performance reviews are written, be sure to give a copy to the employee a day or so before the review is scheduled. It allows you and your employee to have a more productive conversation about your observations and recommendations for change.

Statute excerpts

103.13(2) Open records
103.13(4) Correcting a personnel record
103.13(5) Employee medical records inspection
103.13(6) Exceptions to employee personnel record rights
103.13(7) Copies of personnel records
103.13(8) Employer penalties for violating employee’s records rights

103.13(2) Open records. Every employer shall, upon the request of an employee, which the employer may require the employee to make in writing, permit the employee to inspect any personnel documents which are used or which have been used in determining that employee’s qualifications for employment, promotion, transfer, additional compensation, termination or other disciplinary action, and medical records, except as provided in subs. (5) and (6).

An employee may request all or any part of his or her records, except as provided in sub. (6). The employer shall grant at least two requests by an employee in a calendar year, unless otherwise provided in a collective bargaining agreement, to inspect the employee’s personnel records as provided in this section. The employer shall provide the employee with the opportunity to inspect the employee’s personnel records within seven working days after the employee makes the request for inspection.

The inspection shall take place at a location reasonably near the employee’s place of employment and during normal working hours. If the inspection during normal working hours would require an employee to take time off from work with that employer, the employer may provide some other reasonable time for the inspection. In any case, the employer may allow the inspection to take place at a time other than working hours or at a place other than where the records are maintained if that time or place would be more convenient for the employee.

Correcting a personnel record

103.13 (4) Personnel record correction. If the employee disagrees with any information contained in the personnel records, a removal or correction of that information may be mutually agreed upon by the employer and the employee. If an agreement cannot be reached, the employee may submit a written statement explaining the employee’s position. The employer shall attach the employee’s statement to the disputed portion of the personnel record. The employee’s statement shall be included whenever that disputed portion of the personnel record is released to a 3rd party as long as the disputed record is a part of the file.

Employee medical records inspection

103.13 (5) Medical records inspection. The right of the employee or the employee’s designated representative under sub. (3) to inspect personnel records under this section includes the right to inspect any personal medical records concerning the employee in the employer’s files. If the employer believes that disclosure of an employee’s medical records would have a detrimental effect on the employee, the employer may release the medical records to the employee’s physician or through a physician designated by the employee, in which case the physician may release the medical records to the employee or to the employee’s immediate family.

Exceptions to employee personnel records rights

103.13(6) Exceptions. The right of the employee or the employee’s designated representative under sub. (3) to inspect his or her personnel records does not apply to:

(a) Records relating to the investigation of possible criminal offenses committed by that employee.

(b) Letters of reference for that employee.

(c) Any portion of a test document, except that the employee may see a cumulative total test score for either a section of the test document or for the entire test document.

(d) Materials used by the employer for staff management planning, including judgments or recommendations concerning future salary increases and other wage treatments, management bonus plans, promotions and job assignments or other comments or ratings used for the employer’s planning purposes.

(e) Information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of the other person’s privacy.

(f) An employer who does not maintain any personnel records.

(g) Records relevant to any other pending claim between the employer and the employee which may be discovered in a judicial proceeding.

Copies of personnel records

103.13(7) Copies. The right of the employee or the employee’s representative to inspect records includes the right to copy or receive a copy of records. The employer may charge a reasonable fee for providing copies of records, which may not exceed the actual cost of reproduction.

Employer penalties for violating employee’s records rights

103.13(8) Penalty. Any employer who violates this section may be fined not less than $10 nor more than $100 for each violation. Each day of refusal or failure to comply with a duty under this section is a separate violation.