Many of our clients ask whether a former employee has the right to review their personnel file. That question was recently addressed by the Commonwealth Court in Thomas Jefferson University Hospitals, Inc. v. Department of Labor and Industry, 131 A.3d 567 (Pa. Cmwlth. 2016). The Court initially recognized that the purpose of the Act is to acknowledge the right of both public and private employees to review files held by their employers that contain information about themselves. The Act provides in relevant part: "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." 43 P.S. § 1322. The Act defines an "[e]mployee 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." 43 P.S. §1321. The TJU Court was faced with a request that had come from a terminated employee seven days after she had been terminated.
The TJU Court reviewed its prior decision in Beitman v. Department of Labor and Industry, where Bietman's request, made almost two and a half years after her termination, was found not within the definition of "employee." The TJU Court, however, looking pragmatically at one of the expressed reasons to review a file (termination or disciplinary action) found that an individual's request to obtain his or her personnel file when such a request is made contemporaneously with termination, or within a reasonable time following termination, falls within the intended purpose of the legislation. While the Court did not give further guidance on what it will determine to be within a reasonable time immediately following termination, it's use of the words contemporaneously and immediately, suggest that reasonableness will be the determinative factor when considering former employees' requests.