In my practice, I represent solely employees against their employers. These employers often use information contained in employee personnel files to defend against claims of discrimination; but the information is not always correct, and, occasionally, vital information is missing. Often, employers will argue that an employee’s failure to identify and/or correct such disputed information is the employee's tacit admission of its truthfulness. This can be damaging to the employee's case. Fortunately, Washington State law offers protections for employees seeking to inspect and/or correct errors in their personnel files.
THE RIGHT OF INSPECTION
According to Washington State law, “Every employer shall, at least annually, upon the request of an employee, permit that employee to inspect any or all of his or her own personnel file(s).” RCW 49.12.240 (external hyperlink added). And the employer must "make such file(s) available locally within a reasonable period of time after the employee requests the file(s)." RCW 49.12.250(1).
THE RIGHT OF REBUTTAL
If an employee disagrees with the employer's decision regarding irrelevant or erroneous information in the employee's personnel file(s), there is recourse. The law specifically provides as follows:
An employee annually may petition that the employer review all information in the employee’s personnel file(s) that are regularly maintained by the employer as part of his business records or are subject to reference for information given to persons outside of the company. The employer shall determine if there is any irrelevant or erroneous information in the file(s), and shall remove all such information from the file(s). If an employee does not agree with the employer’s determination, the employee may at his or her request have placed in the employee’s personnel file a statement containing the employee’s rebuttal or correction. Nothing in this subsection prevents the employer from removing information more frequently.
RCW 49.12.250(2) (external hyperlink added). Thus, the rebuttal/correction statement is available to employees as a last resort, and it’s a powerful tool to guard against claims of tacit admissions. Former employees retain this right of rebuttal or correction for a period not to exceed two years. RCW 49.12.250(3).
In any case, there are limitations. The relevant laws, RCW 49.12.240-250, "do not apply to the records of an employee relating to the investigation of a possible criminal offense"; and the same laws "do not apply to information or records compiled in preparation for an impending lawsuit which would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts." RCW 49.12.260.
If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.