Is a Discharged Employee Still an Employee? This was the question the Pennsylvania Supreme Court had to answer after a terminated employee sought access to her file

Tuesday, September 26, 2017 - 13:53
Mark Hipple

Mark Hipple

The Pennsylvania Personnel Files Act (also known as the Inspection of Employment Records Law) grants employees in Pennsylvania, or their designated agents, the right to inspect certain portions of their personnel records. The act requires employers, upon an employee’s request, to permit the employee to inspect the portions of his or her personnel file used to determine qualifications for employment, promotion, additional compensation, termination or disciplinary action. Employers must make the records available during regular business hours and may require employees to submit a written request form.

Until recently, the right to inspect records even extended to former employees for 30 days following their date of discharge, pursuant to a rule adopted by the Pennsylvania Department of Labor and Industry. However, in Thomas Jefferson University Hospitals, Inc. v. Pa. Department of Labor and Industry, the Pennsylvania Supreme Court held that former employees do not have the right to inspect their personnel records.

Allowing discharged employees and their attorneys to access personnel files prior to litigation afforded them great insight into potential legal claims. This type of access to information was often used in developing a strategy for negotiations, future litigation or deciding which claims to assert. The discharged employees and their attorneys could weigh how much the employer’s articulated reason for termination lined up with (or in some cases did not line up with) what the employer documented in the personnel file.

Now, because of the Pennsylvania Supreme Court’s decision, employers can safely refuse to grant discharged employees access to their personnel files.


The Backstory

At the outset of the case, a former employee filed a request, through her attorney, to view her personnel file just one week after she was discharged. The employer denied this request on the basis that the former employee was no longer employed. The former employee filed a complaint with the Department of Labor and Industry claiming that the employer wrongfully denied her request for access to her personnel file. Ultimately, the department granted the former employee’s request to inspect her personnel file, and the employer appealed. On January 6, 2016, the Pennsylvania Commonwealth Court ruled that a recently discharged employee was still an “employee” under the Personnel Files Act.

While the definition of employee under the act (any person currently employed, laid off with reemployment rights or on a leave of absence) appears straightforward, the Commonwealth Court found that the definition did not prohibit a recently terminated individual from obtaining his or her personnel file. The court did note that the request must be made contemporaneously with termination or within a reasonable time immediately following termination. This rationale was based on the 1996 Commonwealth Court decision in Beitman v. Department of Labor & Industry in which an employee requested access to her personnel file two years after she was terminated. The majority found that two years was too long. However, the court left open the possibility that discharged employees could access their personnel files when the request was made within a more reasonable time frame.

Following the Beitman case, the Pennsylvania Department of Labor and Industry adopted a policy that provided former employees access to their personnel files if they made the request within a reasonable amount of time after termination, which they determined to be approximately 30 days. Because of this policy, employers were often required to provide former employees with access to their personnel files even after their termination from employment.

This was the background leading up to the Pennsylvania Supreme Court’s decision. In contrast to the Commonwealth Court, the state’s Supreme Court took a plain-language approach to interpreting the definition of “employee.” In doing so, it concluded that former employees who were not laid off with reemployment rights and who were not on a leave of absence have no right to access their personnel file under the act, regardless of how soon after termination the employee made the request. The Pennsylvania Supreme Court also specifically overruled the Beitman decision, stating that the Commonwealth Court’s holding was dicta and not controlling.


The Bottom Line

While the Pennsylvania Supreme Court’s decision is favorable to employers, this is a good time to remember the importance of including proper documentation in personnel files. A well-documented personnel file that persuasively demonstrates that an employee was discharged for legitimate, nondiscriminatory reasons will go a long way in supporting an employer’s defense against a former employee’s legal claims. After all, while a former employee may not be able to review his or her record pursuant to the act, he or she may be able to obtain a copy pursuant to a subpoena or discovery request in litigation.

Mark Hipple is an associate in the labor and employment practice group at McNees Wallace & Nurick LLC. He can be reached at