This is the eighth and final article in a series explaining how Employee Handbooks play a critical role in preventing successful lawsuits. This post focuses on information on personnel files and computer related policies that should be considered when writing an Employee Handbook.
Many distinctions exist in this area between public and private sector employees and between different states.
In many states, public employees’ personnel files are “public records” under state law and are open to inspection by employee.
Private sector employees’ personnel files are the property of the employer and need not be shared with employees under Utah law (although an employee in Utah, if there is a court dispute– will be able to access relevant personnel file documents for purposes of the lawsuit through discovery rules). Michigan, by way of contrast, allows private sector employee access to personnel In Utah access to private sector employee files is a matter of employer choice. If access is granted, the policy should contain the following:
- Describe who will have access (employees only or others).
- Require a written request for
- Allow access only while accompanied by an employer
- Set forth whether the employee will be allowed to add material to the
- Describe the policy and cost for obtaining copies of file
Computer, E-Mail, Internet And On-Line Services Policy
Policies in this area raise a myriad of issues. Since certain elements of the plaintiffs trial counsel bar refer to E-mail as “the gift that keeps on giving,” it is imperative that an employer’s handbook set forth the following elements in an information technology policy:
- The E-mail Internet access system is the property of the Company.
- The technology is to be used solely for business purposes, or if this is unrealistic, that the technology is only to be used for incidental personal use and business purposes.
- Nothing on the system is or can become the private property of any employee.
- The system must never be used to create offensive or disruptive messages including any information prohibited by the non-harassment policies of the Company.
- The system should never be used to up load or download copyrighted materials, trade secrets, etc. , absent prior authorization from management.
- There can be no expectation or assurance of confidentiality or privacy for any messages, or for any use or pattern of usage of the Internet.
- Since the entire system belongs to the Company, all parts of it are subject to being monitored at all times.
- Employees who misuse the system are subject to discipline up to and including discharge.
Among the many collateral issues is the National Labor Relations Board decision that unions may use an E-mail system to solicit support if the system has been used for any other type of non-work related messages. See DuPont de Nemours Company, 311 N.L.R.B.. 893 (1993).