Pennsylvania’s Personnel Files Act, 43 P.S. Â§Â§ 1321â€”1324, gives certain rights to inspection of specified materials in one’s personnel file to "any person currently employed, laid off with reemployment rights or on leave of absence." So if you have been fired, one would think that you do not have the right under the Act to demand access to your personnel file a week later, right?
Wrong! In Thomas Jefferson University Hospitals, Inc. v. Pennsylvania Department of Labor and Industry, 131 A.3d 567 (Pa. Commw. 2016), the Commonwealth Court held that the Personnel Files Act applied to a woman who requested access to her personnel file a week after she was fired. The complainant in the Thomas Jefferson case, Ms. Haubrich, was fired on August 9, 2013. On August 16, 2013 (a week later), she requested access to her personnel file. Her former employer denied the request because Ms. Haubrich was not "currently employed" when she made her request.
Ms. Haubrich filed a complaint against her employer with the Pennsylvania Department of Labor and Industry, which has power to enforce the Personnel Files Act. The Department apparently sustained her complaint (its reasons are not explained in the Court’s opinion) and granted her request to inspect her personnel file. Ms. Haubrich’s employer appealed the Department’s decision to Commonwealth Court. Unfortunately for her employer, the Commonwealth Court affirmed the Department’s decision.
Prior to the Court’s decision in this case, it would have been appropriate to advise an employer who had received a similar request from a former employee that the employer did not have to grant the request for a personnel file inspection. The only exception to that general rule was in a circumstance where the employee had requested access to his personnel file before he was fired. If the person requested access after he had been dismissed, then the employer could properly deny the request because the individuals was not "currently employed" when the request was made.
The Commonwealth Court, however, has blurred the line of the Act’s applicability. Rather than focus on the "who" of the Act (who has standing to seek personnel file access), the Court looked at the "what" of the Act (what a requester is entitled to review in a personnel file). Section 2 of the Act governs the "what" and provides that a person has the right to inspect "his or her own personnel files used to determine his or her own qualifications for employment, promotion, additional compensation, termination or disciplinary action." The Court reasoned that it would be "absurd" for the Act to apparently allow a person access to records of his "termination" while simultaneously denying that person the right of access under the Act just because they are not "currently employed." After all, "it would not be possible for one to inspect his or her file regarding his or her employment termination while one is currently employed."
It appears that the Court did not realize that there can be situations where a person is fired and then later reinstated to his position by a court, by an arbitrator, or perhaps just because the employer changes its mind and decides to re-hire the person. In those situations, a reinstated or rehired employee would be "currently employed" and may also have a record of being previously "terminated" in his or her personnel file. (Obviously, whether that termination record exists in the personnel file in that scenario would depend on whether, for example, an arbitrator who reinstated him ordered it to be removed). So it would seem at least possible for a person to have a record of his prior "termination" and later be "currently employed" by the same employer.
But the Commonwealth Court did not stop there. It also held that a person who had been fired for over a week ago was nevertheless "currently employed" for purposes of access to her personnel files under the Act. The following is the Court’s reasoning for why Ms. Haubrich qualified as "currently employed" under the Act:
Here, Haubrich made her request to inspect her personnel file one week after her discharge. TJU asserts that Haubrich is not an employee under the Act because she is not currently employed and therefore is not entitled to inspect her file. However, "[a]ccording to Webster’s 11th Collegiate Dictionary, â€˜current’ means â€˜presently elapsing,’ â€˜occurring in or existing at the present time’ or â€˜most recent.’ Webster’s Eleventh Collegiate Dictionary 306 (2004)." â€¦. (second italics added). Haubrich’s employment, having terminated one week prior to her request, clearly qualifies as "presently elapsed" employment and/or "most recent" employment, thereby, falling within the statute. Id.
Thomas Jefferson University Hospitals, 131 A.3d at 570.
We will have to see how far the Court stretches this concept of "currently employed" in subsequent cases. For now, you are well advised to consult with legal counsel whenever a former employee requests access to his/her personnel file under the Personnel Files Act.