On August 9, 2016, Katz, Marshall and Banks partner Michael Filoromo published an article on Law360 entitled, "Deciphering The Scope Of The Pa. Personnel Files Act." The article discusses whether a former employee can be considered a "current" employee under Pennsylvania's Personnel Files Act, and therefore have a right to file a claim for wrongful termination under the act. Depending on how Pennsylvania courts interpret this ambiguity, the state's workers could stand to benefit from broader protections.
Deciphering the Scope of the Pa. Personnel Files Act
Can a former employee be a “current” employee? The Pennsylvania Supreme Court has agreed to consider this seemingly simple question. The answer may impact the advice that attorneys for both plaintiffs and defendants give their clients about potential claims related to employee terminations.
The Ambiguous Personnel Files Act
Enacted in 1978, the Pennsylvania Personnel Files Act (PFA) is intended to allow employees to review files that contain information about them. The law provides that:
An employer shall, at reasonable times, upon request of an employee, permit that 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 law defines an employee as “[a]ny person currently employed, laid off with reemployment rights or on leave of absence” and specifies that “[t]he term ‘employee’ shall not include applicants for employment or any other person.” Under the plain language of the statutory definition of employee, it does not seem that a terminated worker — someone who is not presently employed by the relevant employer — has the right to her personnel file under the PFA.
A Broad Reading of the PFA
The Pennsylvania Department of Labor and a commonwealth court disagree that only present employees (or those laid off with reemployment rights) are covered by the PFA. In the case before the Pennsylvania Supreme Court, now captioned Thomas Jefferson University Hospitals Inc. v. Department of Labor & Industry etc., the plaintiff, Elizabeth Haubrich, was terminated from her employment at Thomas Jefferson University Hospital (TJUH) on Aug. 9, 2013. She requested her personnel file a week later, and TJUH declined to provide it.
Haubrich then filed a claim with the Pennsylvania Department of Labor and Industry, Bureau of Labor Law Compliance on Jan. 20, 2014, asserting that she was entitled to the personnel file under the PFA. TJUH countered that Haubrich was not a current employee when she requested the personnel file, and thus did not have the right to it under the PFA. On Nov. 17, 2014, the department granted Haubrich’s request to inspect her personnel file. TJUH appealed to the commonwealth court.
On Jan. 6, 2016, a three-judge panel of the commonwealth court upheld the department’s decision. The court looked to the dictionary definition of “current,” noting that it means “presently elapsing, occurring in or existing at the present time, or most recent.” The court found it significant that Haubrich requested the file just one week after her termination, when her employment had presently elapsed and/or was most recent. The court also noted that the PFA specifically provides for an employee to inspect files related to her termination.
Unless an employee remained employed for a time after being informed of her termination, there would be no way for a presently employed worker to avail herself of the PFA to determine the basis for her termination. The court also noted that a 1996 commonwealth court decision, Beitman v. Department of Labor and Industry, similarly endorsed an interpretation of the PFA that would allow at least some former employees to obtain their personnel files under the law. The court rejected TJUH’s position that the interpretation set forth in Beitman was merely nonbinding dicta, even if it was not the primary basis for the Beitman court’s decision. TJUH appealed to the Pennsylvania Supreme Court, who on Aug. 2, 2016, agreed to hear the case.
Why We Should Care: Strategy and Best Practices
The case presents an interesting and potentially important question — not simply because of the arguably contradictory rules of statutory construction at play or the issue of what counts as dicta. A victory by the department might help employees considering a termination-related employment claim to obtain important information without formal discovery.
Consider the typical scenario in which an employee is fired for what she believes to be an illegal reason, such as retaliation for recent complaints she made about misconduct. The employee retains an attorney and provides a chronology of events and any evidence she has to support her argument that her firing was improper.
Suppose that, unbeknownst to the employee, her supervisor had submitted to human resources a memorandum detailing performance deficiencies and his intent to terminate her employment. The timing of that memorandum would be very important. If the supervisor placed the note in the employee’s personnel file a few days after she complained about misconduct, her claim would appear much stronger than if the memorandum came the week before her complaint.
Access to an employee’s personnel file after termination can provide plaintiffs and their attorneys with insight into a former employer’s likely defenses. The employee can determine how the employer’s expressed justification for the termination aligns — or does not align — with what the employer documented during the course of the plaintiff’s employment. The personnel file would not be the final word on whether an employee’s claim is viable, but it would provide information to aid counsel in developing a strategy for negotiations or litigation.
For employers, meanwhile, a decision in favor of Haubrich and the department should be an impetus to adopt and/or adhere to best practices with respect to personnel files. Employers will have renewed motivation to ensure that throughout an employee’s tenure, they include documentation for any disciplinary actions or performance deficiencies in their personnel files. Waiting to document problems until a termination decision is fait accompli may look like a last-minute attempt to paper the record and mask an illegal motive for her firing, particularly if past performance evaluations were generally favorable.
On the other hand, employers who already document both good and negative performance may not be adversely affected by a decision in favor of the department. In fact, such employers may actually benefit if employees and their attorneys have access to personnel files before deciding whether to assert a claim. A personnel file that persuasively demonstrates that an employee would have been fired for legitimate, nondiscriminatory reasons may deter speculative claims, potentially saving an employer — and the former employee — considerable time and expense.
Regardless of the outcome of the case, by defining who is a “current employee” under the PFA, the Pennsylvania Supreme Court can provide much-needed clarity to an ambiguous statute and key guidance to employees, employers and the attorneys who advise them.
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