Minnesota Personnel File Requests: Employer Deadlines

Which Employees and Employers Does Minnesota’s Personnel Record Law Cover?

The law binds any private employer with at least one employee and protects a person whose work was done predominately in Minnesota, including a former employee. Under Minn. Stat. § 181.960, subd. 3, an employer is a person who “has one or more employees.” There is no small-business exemption.

Subdivision 2 covers a person who performs services for hire “provided that the services have been performed predominately within this state.” It adds: “The term includes any person who has been separated from employment for less than one year. The term does not include an independent contractor.”

Two groups fall outside. A remote employee who works predominately in another state is not covered by this statute, so that state’s law is the place to look for that employee’s rights. Government bodies subject to chapter 13 are also excluded: subdivision 3 provides that “Employer does not include a state agency, statewide system, political subdivision, or advisory board or commission that is subject to chapter 13.” Their personnel data falls under the Minnesota Government Data Practices Act, including Minn. Stat. § 13.43.

How Fast Must a Minnesota Employer Respond to a Personnel File Request?

You have seven working days from receipt of a written request if the personnel record is located in Minnesota, and 14 working days if it is located outside Minnesota. Minn. Stat. § 181.961, subd. 2, paragraph (a), reads: “The employer shall comply with a written request pursuant to subdivision 1 no later than seven working days after receipt of the request if the personnel record is located in this state, or no later than 14 working days after receipt of the request if the personnel record is located outside this state.”

Three details in that sentence decide your calendar:

1. The trigger is a written request. Subdivision 1 starts with the words “Upon written request by an employee,” and it prescribes no form or wording.
2. The clock runs from receipt. The deadline counts from when the request reaches you, not from when HR first opens it.
3. The location of the record sets the deadline. A record kept outside Minnesota gets the longer period.

Subdivision 2 contains no extension for a busy month or for records spread across payroll, benefits, and HR systems. I suggest treating any written request, including an email or a letter from the employee’s attorney, as starting the clock, because a missed deadline is a violation even when the file is complete.

What Counts as the Personnel Record, and What Can You Leave Out?

The personnel record is a defined list of employment documents you keep, minus ten categories the statute excludes. Under Minn. Stat. § 181.960, subd. 4, the record, “to the extent maintained by an employer,” means “any application for employment; wage or salary history; notices of commendation, warning, discipline, or termination; authorization for a deduction or withholding of pay; fringe benefit information; leave records; and employment history with the employer, including salary and compensation history, job titles, dates of promotions, transfers, and other changes, attendance records, performance evaluations, and retirement record.”

The record is defined by category, not by folder, so wage history, benefit information, and leave records are part of it even when they are kept outside the HR file. The excluded categories are:

1. Written references about the employee, including reference letters from others.
2. Information from an investigation of the employee’s possible violation of law, or of conduct for which you may be liable, until the investigation is completed and you take adverse action based on it (with an added condition for alleged crimes).
3. Education records kept by an educational institution under the federal student-records law.
4. Results of employer testing, except that the employee may see a cumulative total test score.
5. Salary-system and staff-planning information, such as reorganization or promotion plans.
6. Personal comments or data about another person whose disclosure would intrude on that person’s privacy.
7. Notes kept by the employee’s supervisor or by an executive, administrative, or professional employee, if kept in the sole possession of the author.
8. Privileged information, or information not discoverable in a workers’ compensation, grievance arbitration, administrative, judicial, or quasi-judicial proceeding.
9. The part of a coworker’s statement about the employee’s performance or misconduct that identifies the coworker.
10. Medical reports and records.

Leaving out something that belongs in the record has a cost. Minn. Stat. § 181.963 bars you from using omitted information “in an administrative, judicial, or quasi-judicial proceeding, unless the employer did not intentionally omit the information and the employee is given a reasonable opportunity to review the omitted information prior to its use.” A warning withheld from the copy can be a warning you cannot use later, which is why documenting discipline and producing it go together.

An empty category is a different matter. In one separation I negotiated for an employee, production of the personnel record became a term of the agreement, and the employer’s first production held only hire and onboarding papers. When the employer’s attorney asked what happens if nothing exists in a category, my answer was that the statute reaches the record “to the extent maintained by an employer,” so a written statement that nothing exists closes that category. Wage history, deduction authorizations, benefit information, leave records, and attendance records were still owed. For what belongs in the file in the first place, see which records belong in a Minnesota personnel file.

How Does the Employer Provide Access to Current and Former Employees?

A current employee reviews the record at or near the workplace during your business hours and may then ask in writing for a copy. A former employee gets a copy. Neither pays for it.

For current employees, Minn. Stat. § 181.961, subd. 2, paragraph (b), requires that “the personnel record or an accurate copy must be made available for review by the employee during the employer’s normal hours of operation at the employee’s place of employment or other reasonably nearby location, but need not be made available during the employee’s working hours.” It continues: “The employer may require that the review be made in the presence of the employer or the employer’s designee. After the review and upon the employee’s written request, the employer shall provide a copy of the record to the employee.”

For separated employees, paragraph (c) provides: “With respect to employees who are separated from employment, upon the employee’s written request, the employer shall provide a copy of the personnel record to the employee. Providing a copy of the employee’s personnel record to the employee satisfies the employer’s responsibility to allow review as stated in subdivision 1.” Paragraph (d) adds: “The employer may not charge a fee for the copy.”

I suggest keeping a dated list of exactly what you produced, page by page. If the employee later says something was missing, that list is your evidence of what was produced.

When Can a Minnesota Employer Decline a Personnel File Request?

You may decline in two situations: a current employee already reviewed the record during the previous six months, or the request is not made in good faith, which you must prove. A former employee may still review the record once each year after separation. Both come from Minn. Stat. § 181.961.

The frequency limit is in subdivision 1: “An employer is not required to provide an employee with an opportunity to review the employee’s personnel record if the employee has reviewed the personnel record during the previous six months; except that, upon separation from employment, an employee may review the employee’s personnel record once each year after separation for as long as the personnel record is maintained.” The good-faith ground is in subdivision 3: “The employer may deny the employee the right to review the employee’s personnel record if the employee’s request to review is not made in good faith. The burden of proof that the request to review is not made in good faith is on the employer.” I suggest relying on this ground only with evidence you could show a judge, because the burden is yours.

One drafting gap affects long-departed employees. The definition in § 181.960, subd. 2, covers a person “separated from employment for less than one year,” while subdivision 1 of § 181.961 allows a review “once each year after separation for as long as the personnel record is maintained.” I suggest answering a former employee’s request even after the first year, because a free copy costs less than a dispute over which text controls.

How Does Minnesota Handle an Employee’s Dispute Over the File?

If an employee disputes something in the record, you can agree to remove or revise it, and if you do not agree, the employee may add a written position statement that stays with the disputed information. Under Minn. Stat. § 181.962, subd. 1, if no agreement is reached, “the employee may submit a written statement specifically identifying the disputed information and explaining the employee’s position.”

Paragraph (b) sets three rules for that statement: “The employee’s position statement may not exceed five written pages. The position statement must be included along with the disputed information for as long as that information is maintained in the employee’s personnel record. A copy of the position statement must also be provided to any other person who receives a copy of the disputed information from the employer after the position statement is submitted.”

Honoring that procedure protects you. Subdivision 2(b) provides that “No communication by an employer of information contained in an employee’s personnel record after the employee has exercised the employee’s right to review pursuant to section 181.961 may be made the subject of any common law civil action for libel, slander, or defamation unless” four things occur. First, the employee disputed specific information in the record. Second, you refused to agree to remove or revise it. Third, the employee submitted a written position statement. Fourth, you then either refused or negligently failed to include the statement or send it as required, or “thereafter communicated the disputed information with knowledge of its falsity or in reckless disregard of its falsity.” If you do agree to a change, subdivision 2(c) provides that a defamation action “is not prohibited if the communication is made after the employer and the employee reach an agreement to remove or revise disputed information and the communication is not consistent with the agreement.” The employee’s side of this process is covered in an employee’s right to correct the file.

Which Related Requests Run on Their Own Deadlines?

A personnel file request can arrive with other requests that have their own clocks or filing rules. Four apply to Minnesota employers: a terminated employee’s request for the written reason, employee assistance records, exposure and medical records in some workplaces, and medical files under federal and Minnesota disability law.

• Reason for termination. Under Minn. Stat. § 181.933, subd. 1, “An employee who has been involuntarily terminated may, within 15 working days following such termination, request in writing that the employer inform the employee of the reason for the termination. Within ten working days following receipt of such request, an employer shall inform the terminated employee in writing of the truthful reason for the termination.” Check the current text of § 181.933 before relying on those windows. I suggest drafting that answer with the personnel file open, because the two documents will be read side by side. More on that request is in my page on Minnesota termination notice rules.
• Employee assistance records. Under Minn. Stat. § 181.980, subd. 2, on a written request, the employee assistance provider “shall comply with a request under this subdivision no later than seven working days after receipt of the request if the records are located in this state, or 14 working days after receipt of the request if the records are located outside this state.” Subdivision 3 adds: “Employee assistance records must be maintained separate from personnel records and must not become part of an employee’s personnel file.”
• Exposure and medical records. The federal Occupational Safety and Health Administration (OSHA) rule at 29 C.F.R. § 1910.1020 applies to an employer with records “pertaining to employees exposed to toxic substances or harmful physical agents.” Paragraph (e)(1)(i) provides: “If the employer cannot reasonably provide access to the record within fifteen (15) working days, the employer shall within the fifteen (15) working days apprise the employee or designated representative requesting the record of the reason for the delay and the earliest date when the record can be made available.” The rule has its own definitions and exceptions, so I suggest reading the full section if your workplace keeps these records.
• Medical files under the ADA and the Minnesota Human Rights Act. The Americans with Disabilities Act (ADA) covers an employer that “has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year” (42 U.S.C. § 12111; the definition has its own exceptions). For that employer, medical information from “a medical examination after an offer of employment has been made to a job applicant,” from a voluntary examination in an employee health program, or from “inquiries into the ability of an employee to perform job-related functions” must be “collected and maintained on separate forms and in separate medical files” and treated “as a confidential medical record,” subject to listed exceptions (42 U.S.C. § 12112). The Minnesota Human Rights Act defines an employer as “a person who has one or more employees” (Minn. Stat. § 363A.03, subd. 16). Under Minn. Stat. § 363A.20, subd. 8, information from a physical examination after a conditional job offer, and the employee medical information listed in paragraph (b), must likewise be “collected and maintained on separate forms and in separate medical files” and treated “as a confidential medical record,” subject to listed exceptions. Minnesota already excludes medical reports and records from the personnel record, so keeping them in a separate file serves each of these laws.

What Are the Rules for Sharing a Personnel File With Anyone Else?

The personnel record statutes give the employee a right of review, while separate Minnesota statutes limit what you share with others and protect certain reference disclosures. Two of them are the employment reference statute and the employee assistance records statute.

Minn. Stat. § 181.967, subd. 2, protects a private employer that gives a prospective employer certain listed information under the conditions in subdivision 3, some of it only in writing or with the employee’s written authorization. No action may be maintained over those disclosures “unless the employee or former employee demonstrates by clear and convincing evidence” that the information was false and defamatory and that “the employer knew or should have known the information was false and acted with malicious intent to injure the current or former employee.”

Paragraph (a) of subdivision 3 covers listed information a private employer discloses “in response to a request for the information,” including dates of employment, compensation history, job description, and training. It also includes documented “acts of violence, theft, harassment, or illegal conduct documented in the personnel record that resulted in disciplinary action or resignation and the employee’s written response, if any, contained in the employee’s personnel record.” For that last category, “A disclosure under clause (5) must be in writing with a copy sent contemporaneously by regular mail to the employee’s last known address.” Written evaluations, written disciplinary warnings and actions from the five years before the authorization, and written reasons for separation are protected only “With the written authorization of the current or former employee,” and you must then send the employee a copy of what you disclosed and to whom. The protection has a limit: subdivision 6 provides that “This section does not apply to an action involving an alleged violation of chapter 363 or other statute,” so it does not reach a lawsuit alleging a statutory violation. More on reference practice is in my page on what a reference can safely say.

If you run a drug or alcohol testing program, Minn. Stat. § 181.954, subd. 2, provides that test result reports “and other information acquired in the drug or alcohol testing or cannabis testing process” may not be disclosed “to another employer” without “the written consent of the employee or job applicant tested.”

Employee assistance records are more restricted. Under Minn. Stat. § 181.980, subd. 5, “No portion of employee assistance records, or participation in employee assistance services, may be disclosed to a third person, including the employer or its representative, without the prior written authorization of the person receiving services, or the person’s legal representative,” subject to three listed exceptions. Inside the company, I suggest limiting personnel file access to the people who need it for a decision, for the reasons covered in my page on confidentiality of employee records.

What Are the Consequences of Missing the Deadline or Retaliating?

A missed deadline or an incomplete production exposes you to a state fine and a private lawsuit, and retaliating against the employee for asking adds back pay, reinstatement, and attorney fees. Under Minn. Stat. § 181.9641, “The Department of Labor and Industry shall enforce sections 181.960 to 181.964. The department may assess a fine of up to $5,000 for a violation of sections 181.960 to 181.964.”

The fine can be collected through a lawsuit in the Department’s name. The statute provides that “The fine, together with costs and attorney fees, may be recovered in a civil action in the name of the department brought in the district court of the county where the violation is alleged to have occurred or where the commissioner has an office.”

The employee has a separate claim. Minn. Stat. § 181.965, subd. 1, allows “a civil action to compel compliance” with relief that depends on the violation:

• For a violation of the review, content, dispute, or omission rules: “actual damages only, plus costs.”
• For retaliation: “actual damages, back pay, and reinstatement or other make-whole, equitable relief, plus reasonable attorney fees.”

The retaliation rule itself is broad. Minn. Stat. § 181.964 provides that “An employer shall not discharge, discipline, penalize, interfere with, threaten, restrain, coerce, or otherwise retaliate or discriminate against an employee for asserting rights or remedies provided in sections 181.960 to 181.965.” Subdivision 2 of § 181.965 also sets a limitations period, so check its current text if a claim is threatened. I suggest keeping any discussion of the request out of performance conversations, because the timing alone can look like retaliation.

How Should a Minnesota Employer Prepare for the Next Request?

Preparation means giving the required notice at hire, knowing where every category of the record lives, and naming one person to own each request from receipt to production. The notice is a legal requirement: under Minn. Stat. § 181.9631, “An employer as defined under section 181.960, subdivision 3, shall provide written notice to a job applicant upon hire of the rights and remedies provided in sections 181.960 to 181.965.”

I suggest building these steps into your HR process, because each one answers a rule above:

1. Add the notice to onboarding. A written summary of the rights and remedies in §§ 181.960 to 181.965 should go out with every new hire’s onboarding papers.
2. Log every written request on the day it arrives. Record the receipt date and whether the record is located in Minnesota, because those two facts set the deadline.
3. Map the record before you need it. List where applications, pay history, deduction authorizations, benefits, leave, attendance, evaluations, and discipline are kept, including systems run by vendors.
4. Keep medical and employee assistance records in separate files. Both are outside the personnel record, and § 181.980 subd. 3 requires the separation for employee assistance records.
5. Review the copy against the ten exclusions before sending it. Remove what the statute excludes, and keep what belongs, because an omission can bar later use under § 181.963.
6. Keep a copy of exactly what you sent. A dated production set answers any later claim that something was missing.

A request that comes at a separation can arrive alongside final pay questions under Minn. Stat. § 181.13 for a discharged employee and Minn. Stat. § 181.14 for an employee who quits or resigns, which my page on Minnesota final pay rules covers.

Next Steps for Your Personnel File Process

Minnesota’s personnel record law is short and specific. A written request starts a seven or 14 working-day clock, the copy is free, the record is what you actually keep minus ten exclusions, and a missed deadline can bring a Department of Labor and Industry fine and a lawsuit. I suggest deciding now who answers these requests and where each part of the record is kept, because the deadline leaves little time to find out.

More on related employer duties is in my Minnesota employment law materials. If you would like me to check a personnel file request you have received, or the copy before it goes out, against these rules, email [email protected] with a brief description, and I can start an intake and conflict check before you send any confidential documents.