This is Part 4 in a 6-part series on Connecticut Employment Laws You Didn’t Know Existed.
Have you issued discipline, fired an employee, or even given a written performance evaluation since October 1, 2013? If so, you most likely violated a new provision in Connecticut’s Personnel File statute, which applies to private-sector employers. The new provision requires employers to state on any disciplinary documentation, termination notice, or performance evaluation that the employee has the right to submit a written statement disagreeing with the contents. Employees in Connecticut and several other states have long possessed this right, but the obligation to affirmatively notify the employee of this right is unique to Connecticut. Employers should update their forms with “clear and conspicuous language” explaining this right. We suggest putting the following statement in a 12-point (or larger) bold font: “Should you disagree with any of the information contained in this document, you may submit a written statement explaining your position. This statement will be added to your personnel file.” If the employee provides such a statement, it should be included any time the personnel file is being given to a third party. (Other than certain limited exceptions, information maintained in a private-sector employee’s personnel file may not be shared without the employee’s consent.)
Importantly, employers must provide copies of documentation of disciplinary actions within one business day after the disciplinary action is imposed. If the employee is terminated, any documented notice must be given immediately. It remains unclear what, if any, notice is required for other situations, such as verbal warnings or internal memos regarding an employee’s performance.
At the same time that these requirements were added, the legislature clarified certain other requirements pertaining to personnel files. Current employees must be granted access to inspect or copy their personnel files within 7 days of a written request. Former employees must be given access within 10 days, but if the request is received more than a year after termination of employment, there is no obligation to comply. Connecticut employers are not required to maintain personnel files, but if they do, they must be kept for at least one year after termination of employment.
Which documents must be provided in response to such a request? Any documents “pertaining to a particular employee that are used or have been used by an employer to determine such employee’s eligibility for employment, promotion, additional compensation, transfer, termination, disciplinary or other adverse personnel action including employee evaluations or reports relating to such employee’s character, credit and work habits” make up the personnel file, even if they are kept elsewhere. “Stock option or management bonus plan records, medical records, letters of reference or recommendations from third parties including former employers, materials that are used by the employer to plan for future operations, information contained in separately maintained security files, test information, the disclosure of which would invalidate the test, or documents which are being developed or prepared for use in civil, criminal or grievance procedures” are excluded.
The good news for employers is that employees do not have a right to sue for violations of this statute. However, violations are punishable by fines of up to $1,000. It is also possible a court would refuse to allow an employer to introduce as evidence disciplinary records that do not comply with the statute’s requirements. Our team of labor and employment attorneys would be happy to assist you in ensuring your compliance with this or any employment law.