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Pennsylvania Highest Court Has Spoken: Former Employees Are Not Entitled to Inspect Their Personnel Files

Authors: L. Evan Van Gorder (Philadelphia), Donald D. Gamburg (Philadelphia)

Published Date: July 3, 2017

Since January 6, 2016, almost 18 months ago, in accordance with a decision by the Commonwealth Court of Pennsylvania, employers in the state of Pennsylvania have been required to allow recently separated employees access to their personnel files on the same footing as current employees. That 2016 decision reversed the common thinking among employers in Pennsylvania that only current employees had the right to access their personnel files, and that former employees—no matter how long ago they had been separated—were not entitled to such access. Fortunately for employers, in the recent opinion issued by the Supreme Court of Pennsylvania, Thomas Jefferson University Hospital, Inc. v. Pennsylvania Department of Labor and Industry, No. 30 EAP 2016 (June 20, 2017), that 2016 decision was reversed. The state supreme court held that a recently terminated employee is not an “employee” and, thus, is not entitled to inspect his or her personnel file according to the Pennsylvania Inspection of Employment Records Law (Personnel Files Act).

At the heart of the court’s analysis was the definition of “employee,” which under the Personnel Files Act is defined as “[a]ny person currently employed, laid off with reemployment rights or on leave of absence.  The term ‘employee’ shall not include applicants for employment or any other person.” This definition was previously expanded by the Commonwealth Court of Pennsylvania in a 1996 decision when it ruled that the term “currently employed” should not be interpreted “so stringently as to prohibit an individual from obtaining his or her personnel file when such request is made contemporaneously with termination or within a reasonable time immediately following termination.”

Relying on the 1996 decision, in 2016 the commonwealth court ruled that a former employee’s request to inspect her personnel file one week after her termination was protected under the Personnel Files Act. In reaching its decision, the commonwealth court defined “current” to mean “‘presently elapsing,’ ‘occurring in or existing at the present time’ or ‘most recent.’” The lower court further opined that it was necessary to construe the Personnel Files Act to include recently discharged employees because under Section 1322 of the act, “an employee is expressly permitted to inspect one’s personnel file to determine the basis for his [or] her employment termination, [and] it would not be possible for one to inspect his or her file regarding his or her employment termination while one is currently employed.” Accordingly, the lower court concluded that it was necessary to read “recently terminated employees” into the Personnel Files Act to avoid an absurd result.

In reversing the commonwealth court’s decision, the Supreme Court of Pennsylvania turned to the Oxford English Dictionary to conclude that “the commonly accepted understanding of being currently employed requires that a person be maintained in another’s service now, at the present time.” Further, in addressing the potential ambiguity created by Section 1322 of the Personnel Files Act, the state’s supreme court reasoned that Section 1322 is intended to apply in situations where currently employed individuals receive advance notice that they will be discharged from employment. The court further reasoned that the language of Section 1322 merely guarantees inspection access to current employees to files that the employer uses to determine whether an employee qualifies for discharge.

Ultimately, reading the Personnel Files Act according to its plain terms, the Supreme Court of Pennsylvania definitively concluded that “former employees, who were not laid off with re-employment rights and who are not on a leave of absence, have no right to access their personnel files pursuant to the Act, regardless of how quickly following termination they request to do so.” Thus, “current” once again means “current” in Pennsylvania.

L. Evan Van Gorder  (Philadelphia)

L. Evan Van Gorder
L. Evan Van Gorder represents corporations in employment-related and complex commercial matters, including litigation involving discrimination, wage and hour, wrongful discharge and other claims in state and federal courts and administrative agencies. His employment litigation experience includes enforcement of non-competition and non-solicitation agreements, defending discrimination claims through trial, and handling administrative claims before the EEOC and state fair employment practice...

Donald D. Gamburg  (Philadelphia)

Donald D. Gamburg
Donald Gamburg has over 20 years' experience in all areas of labor and employment law. He represents clients in federal and state litigation involving trade secrets and employment restrictive covenant agreements, discrimination, harassment, retaliation, whistleblower, wage and hour, FMLA, ERISA, wrongful discharge, torts, and breach of contract; equal employment opportunity matters before federal, state, and local agencies; unfair labor practice and representation proceedings before the National...

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