The recent introduction of so-called privacy legislation is having a ripple effect on employers’ human resources practices. One of these effects is the now frequent demand by employees to see the contents of their personnel file.
How effectively employers manage these requests likely depends to a large degree on how well they understand the new legislation. B.C.’s Personal Information Protection Act governs the collection, use, retention, and disclosure of personal information by businesses, non-profit organizations, and charities. Similar legislation is in effect in the federal jurisdiction.
The Act applies to information collected from and about employees and, in some instances, requires their informed consent before the information can be used and disclosed. To be in compliance with the Act, every organization in B.C. must have appointed a person to oversee their personal information policy. Employers must also have developed policies to comply with the Act and a process for responding to complaints about compliance.
Compliance with the Act does not require the employer to hand over the entire personnel file to the employee. The key to dealing with access requests is to understand what types of information are covered by the Act and which categories of information must be disclosed to the employee.
Generally, the employer must provide the employee with access to personal information, with details about the ways in which that information has been and is being used, and the identity of persons to whom it has been disclosed.
The employer is not required to (but may, if it chooses) disclose a range of different types of information. The employer need not disclose any information protected by solicitor-client privilege or which was collected for the purposes of an investigation which (including any associated proceedings) is not yet completed.
Any information collected or created by a mediator or arbitrator in the conduct of a proceeding under a collective agreement, statute, or a court need not be disclosed. The employer also need not disclose any information that would reveal confidential commercial information which could harm its competitive position.
The employer must not disclose to the employee certain other categories of information. These include information which, if disclosed, might threaten the well-being of the employee or of an individual other than the one making the request for disclosure. Information which would reveal personal information about another individual, or which would reveal the identity of another individual who provided the confidential information (and who has not consented to the disclosure), must not be disclosed.
In practice, this means that personnel file contents must be carefully screened by the employer in advance of providing the employee with access. Certain information should, and in some cases must, be removed before giving access. The remaining information will likely be material that the employer would have no legitimate reason to withhold.
Will the Act have an effect on the types of information the employer retains in the personnel file? Perhaps, but it is worth noting that the requirements of the Act cannot be avoided simply by storing employees’ personal information in a separate file.
In a sense, the requirements of the Act may prove to be a good thing for employer and employee alike. Practically speaking (and subject to the types of information excluded from disclosure), anything the employer wouldn’t want the employee to see probably shouldn’t have been retained in the file anyway. So, if nothing else, the Act should result in a reduction in the amount of paper and electronic documents employers tend to accumulate.
These items are intended for general informational purposes only and should not be construed or relied upon as legal advice. The legal issues addressed in these items are subject to changes in the applicable law. You should always seek competent legal advice concerning any specific issues affecting you or your business.