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July 26, 2017
Last month, the Pennsylvania Supreme Court declared that former employees do not have a right to inspect their personnel files under the Inspection of Employment Records Law (hereinafter “the Personnel Files Act”). In doing so, the Court reversed the Department of Labor & Industry’s (and employers’) reliance on a longstanding Commonwealth Court decision.
The case, Thomas Jefferson University Hospitals, Inc. v. Pennsylvania Department of Labor & Industry, focused on the definition of “employee” in the Personnel Files Act. Under the Personnel Files Act, “an employer shall, at reasonable times, upon request of an employee, permit that employee or an agent designated by the employee 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 Personnel Files Act defines “employee” as “[a]ny person currently employed, laid off with reemployment rights or on leave of absence.” The term ‘employee’ shall not include applicants for employment or any other person.
Though it seems clear that a former employee is not an “employee” under the statute, until recently, Pennsylvania courts have not interpreted the statute that way.
Specifically, in 1996, the Commonwealth Court held that the employer rightfully denied an employee access to her personnel file when the request came over two years after her termination. Beitman v. Pennsylvania Department of Labor & Industry. However, the court limited its holding to the facts of the case, explaining that it did “not interpret the phrase ‘currently employed’ so stringently as to prohibit an individual from obtaining his or her personnel file when such request is made contemporaneously with termination or within a reasonable time immediately following termination.”
For those of you who think it is not stringent at all to interpret “currently employed” to mean someone who is actually a current employee … good news – the Pennsylvania Supreme Court agrees with you.
In Thomas Jefferson, the Hospital terminated nurse-anesthetist Elizabeth Haubrich on August 9, 2013, and she filed a request to view her personnel file a week later, on August 16, 2013. The Hospital denied her request and she filed a complaint with the Department of Labor & Industry. The Department sided with Haubrich. The Hospital appealed the Department’s decision to the Commonwealth Court.
The Hospital made two main arguments on appeal. First, the Hospital argued that the plain language of the Personnel Files Act applies only to employees who are “currently employed, laid off with reemployment rights or on leave of absence” and expressly excludes “any other person.” Because Haubrich was not currently employed, laid off with reemployment rights, or on a leave of absence, the Hospital argued that she had no right to make a request under the Personnel Files Act. Second, the Hospital argued that the language from Beitman, upon which the Department relied, was merely dicta and holds no precedential value.
The Commonwealth Court sided with Haubrich, holding that recently terminated employees fall within the Personnel Files Act’s definition of “employee.” The Commonwealth Court cited its own previous decision in Pickens v. Underground Storage Tank Indemnification Fund Board, where the court defined “current” broadly to include “presently elapsing” or “most recent.” In support of its broad reading, the Commonwealth Court reasoned that it was necessary to construe the Personnel Files Act to apply to recently terminated employees to avoid an absurd result. In the court’s words, “an employee is expressly permitted to inspect one’s personnel file to determine the basis for his [or] her employment termination, [and] it would not be possible for one to inspect his or her file regarding his or her employment termination while one is currently employed.” Finally, the Commonwealth Court concluded that the qualifying language from the Beitman decision was not merely dicta and was therefore binding on the court.
On appeal, the Pennsylvania Supreme Court agreed to consider the issue of whether the Act’s definition of “employee” includes recently terminated employees. The Court rejected the Commonwealth Court’s broad reading of “current” for two reasons. First, the Court held that the Commonwealth Court’s reliance on Pickens was improper, as Pickens dealt with the interpretation of the phrase “current fee,” which is commonly understood to mean the most recent fee. However, within the context of the Personnel Files Act, the plain meaning of “currently employed” is much closer to employed “right now” or “at the present time.” Second, the Court rejected the Commonwealth Court’s contention that construing the Personnel Files Act to apply to recently terminated employees was necessary to avoid an absurd result. As Justice Wecht writes, while a current employee requesting to inspect his personnel file to determine his “qualifications for…termination,” may seem “at first blush peculiar,” there are indeed “situations in which currently employed individuals receive advance notice that they will be terminated from employment.” While this situation may be rare, the Personnel Files Act’s language is “nonetheless sufficiently unambiguous in context.”
Importantly, the Court also expressly stated that the language that qualifies the Commonwealth Court’s holding in Beitman was merely dicta. The Court concluded that the language “was not essential to [the Beitman court’s] holding, and the factual scenario that it discussed was not before the court.” This final pronouncement punctuates the Court’s unambiguous holding that recently terminated employees have no recourse under the Personnel Files Act.
Remember, however, that, despite this case, employers may wish to provide a personnel file to a former employee in an effort to avoid litigation. And, if litigation ensues, the former employee will be able to secure his/her personnel file in discovery.