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Does Your Abusive Boss Keep Notes About You Outside Your Personnel File?

Today’s post is an excellent question I received in the Undercover Lawyer Forum:

Question:

I have copies of my personnel file from HR.  I am hearing from co-workers that the head honcho has files on employees in her office-presumably all of the “bad” stuff. I suppose it is legal for her to have these files.
Are they admissable as evidence in proceedings?  My personal documentation is admissible; is this considered her personal documentation?

Answer:

One thing many employers often get wrong is what a “personnel file” is.  They think if an employee requests a copy of the personnel file, the employee only gets what is kept in a folder with “employee’s name” marked on it, and which is kept in a file drawer along with a bunch of other employees’ files.

Many employers mistakenly believe that if they keep documents about an employee’s performance some where else (like a “working file”, or in a notebook, or notes in an organizer) then those documents don’t really exist.  The employee is not entitled to those documents.

This is not correct.

If state law give you a right to a copy of your personnel file, then you get EVERYTHING that references your job performance — without any regard to where the documents are physically kept.  Formal personnel file, working file, wadded up notebook paper, post-it notes… it doesn’t matter!

If an employer denies that document outside of your personnel file exist and will not give you copies (even though you KNOW those documents exist), the your employer will not be able to use those ‘secret documents’ against you.

If your dispute with your employer goes to court and your employer continues to deny the documents exists, then your employer could face being sanctioned for discovery violations.  Such sanctions frequently include fines, prohibiting the use of the documents against you, and payment of some of your attorney fees.

Conclusion

Unless you have a witness who has seen the mystery documents, you may not be able to get those papers unless you go to court.  BUT, you will not have to fear those documents being used against you.  If your employer insists on keeping secrets about you, the court will deem those secrets to be non-existent.

Do you have a boss that keeps notes on employees and denies those documents exist?  Have you ever tried to get copies of your personnel files and been rebuffed?  Tell us what happened to you in the comments section below.

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Comments

  1. I have seen files in the past, i know where they WERE kept and have seen yellow folder during interrogations in the past, so where is all that stuff, Not in my personnel file! hmmmm

  2. I am so happy to see this post. My company refused to give me my files created by my supervisor. I know he took notes every time we met. They say those are his personnel files and he doesn’t have to share them.
    Thank-You

  3. I am an EMT and a US Navy Vet. I was fired after my boss trumped up false allegations against me. These allegations can cost me my career as well as my job. She discussed my termination with employees both before and after she fired me. She told me she had no details, and did not bother to find out if her ‘witness’ was a “real person.” She has never been consistant in her disciplinary proceedures. I never signed any papers saying she had ever had a disciplinary problem. (They think they cover their butts by not putting anything in writing.) She singled me out to never being allowed to work overtime and the ONLY employee who could not stay overnight at the station. She said I was “missing shifts” because I was 15 minutes late one time. These accusations I was not aware of until the DAY AFTER I was fired. She made derogatory comments about myself, my family and my work performance even though I exceeded requirements to keep my certifications up by the state (we are required to have 40 educational credits every 2 yrs and I completed 200 credits my first year alone) and spent countless hours working “off the clock”. I never had a poor performance review, patient complaint, or negative QA review.
    Her issue with me? I really have no idea. She just decided one day before she had even met me that she didn’t like me and encouraged other employees to “snitch” anytime I did anything they didn’t like or could twist because I wasn’t part of their “click.”
    Most recently, I found out that she keeps a second personnel file at the office. When I mentioned that at the unemployment office, they told me that was a BIG no-no! Of course I’m also aware of other illegal activity that she does, and have “proof” of some of it.
    I’m trying to find a lawyer but in my area it’s slim pickins… we live in a very rural area, lawyers don’t specialize in employment law, and the ones that *could* handle my case tell me it’s a conflict of interest because they have handled matters for her in the past, or they want to charge an outrageous amount just for a consultation!

  4. While this an interesting concept I can’t find any to enforce it in WA state. I have tried to get all files but my boss says they don’t have to show me anything other than the little manilla folder. They do have other folders that they pull documents from at their convenience. I have tried contacting the union and the Dept of L&I and the office of the superintendent of public instruction. (I work in a school). No one seems to think I have a right to see those files. So what’s the point if I have this right and no one can or will enforce it?

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