July 18, 2018 By Thomas D. Rees, Esquire Last year, the Pennsylvania Supreme Court held that only current employees have the right to review their personnel files under the Pennsylvania Personnel Files Act. This decision in Thomas Jefferson University Hospitals, Inc. v. Pennsylvania Department of Labor and Industry, 162 A.3d 384 (Pa. 2017), does not seem surprising. After all, the statute defines “employee” as a person “currently employed” or someone on layoff with rights to return to work or on leave of absence. Pennsylvania’s Personnel Files Act gives employees the right to review their own employer-maintained personnel files to determine the employee’s own qualification for employment, promotion, compensation, or termination. The Department of Labor and Industry has the power to enforce the Act. By not allowing ex-employees the right to review personnel files, Pennsylvania’s statute differs from the majority of state statutes that provide for access to personnel files. However, many states do not have any statute permitting employees to review their personnel files. The Jefferson Hospital decision resolved 20 years of uncertainty in the law. The uncertainty stems from both vague drafting of the statute and the Commonwealth Court’s 1996 decision in Beitman v. Department of Labor and Industry, 675 A.2d 1300 (Pa. Cmwlth. 1996). The Beitman decision refused to allow a terminated employee to inspect her own personnel file two years after termination. But the Court stated that an employee could inspect a personnel file within a reasonable time after termination in order to ascertain the reason for termination. This statement about a “reasonable time” was dictum- a fancy legal term for a statement that was not essential to the Court’s ruling. The Beitman decision became known more for this dictum on what an employee might be able to do (review a personnel file reasonably soon after termination) than its denial of review to the plaintiff employee. And so terminated employees started asking to review their files. The Bar and the Department of Labor and Industry then had to figure out when after termination it was too late to inspect a file. Was one week too late? One month? Six months? Labor and Industry decided that 30 days after termination was a logical cutoff date. In 2013, a terminated Jefferson Hospital employee asked to inspect her file a week after termination. The hospital rejected her request. Labor and Industry ruled in favor of the employee and the hospital appealed to the Commonwealth Court, which upheld her right to review the file. The Supreme Court reversed the Commonwealth Court unanimously. The Supreme Court held that “current employee” means an individual who is presently employed. The Court overruled the statements in Beitman allowing ex-employee review to the extent that these statements were more than dictum. The Supreme Court’s decision helps to restore certainty to the law. In effect, the Court has held that the Act means what it says and means what most readers initially thought it meant. There is always the chance for future disputes, however, over when one ceases to be an employee. For example, can a terminated employee with two weeks of accrued vacation review a personnel file as a current employee during the two weeks after termination? Stay tuned. If you have any questions, please contact Thomas D. Rees at 610-275-0700 or via email at firstname.lastname@example.org. The High Swartz employment law attorneys provide businesses and nonprofit organizations throughout the Pennsylvania region, including Bucks County, Montgomery County, Delaware County, Philadelphia and Chester County with sound advice and excellent representation. The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation.