Minnesota Session Laws - 1989, Regular Session

  

                         Laws of Minnesota 1989 

                        CHAPTER 349-H.F.No. 260 
           An act relating to employment; providing for review of 
          an employee's personnel record; providing for removal 
          or revision of disputed information contained in an 
          employee's personnel record; regulating use of omitted 
          information; prohibiting retaliation; proposing coding 
          for new law in Minnesota Statutes, chapter 181. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
     Section 1.  [181.960] [DEFINITIONS.] 
    Subdivision 1.  [APPLICABILITY.] For purposes of sections 1 
to 7, the following terms have the meanings given in this 
section.  
    Subd. 2.  [EMPLOYEE.] "Employee" means a person who 
performs services for hire for an employer, provided that the 
services have been performed predominately within this state.  
The term includes any person who has been separated from 
employment for less than one year.  The term does not include an 
independent contractor.  
    Subd. 3.  [EMPLOYER.] "Employer" means a person who has 20 
or more employees.  Employer does not include a state agency, 
statewide system, political subdivision, or advisory board or 
commission that is subject to chapter 13.  
    Subd. 4.  [PERSONNEL RECORD.] "Personnel 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 term does 
not include:  
    (1) written references respecting the employee, including 
letters of reference supplied to an employer by another person; 
    (2) information relating to the investigation of a 
violation of a criminal or civil statute by an employee or an 
investigation of employee conduct for which the employer may be 
liable, unless and until: 
    (i) the investigation is completed and, in cases of an 
alleged criminal violation, the employer has received notice 
from the prosecutor that no action will be taken or all criminal 
proceedings and appeals have been exhausted; and 
    (ii) the employer takes adverse personnel action based on 
the information contained in the investigation records; 
    (3) education records, pursuant to section 513(a) of title 
5 of the Family Educational Rights and Privacy Act of 1974, 
United States Code, title 20, section 1232g, that are maintained 
by an educational institution and directly related to a student; 
    (4) results of employer testing, except that the employee 
may see a cumulative total test score for a section of the test 
or for the entire test; 
    (5) information relating to the employer's salary system 
and staff planning, including comments, judgments, 
recommendations, or ratings concerning expansion, downsizing, 
reorganization, job restructuring, future compensation plans, 
promotion plans, and job assignments; 
    (6) written comments or data of a personal nature about a 
person other than the employee, if disclosure of the information 
would constitute an intrusion upon the other person's privacy; 
    (7) written comments or data kept by the employee's 
supervisor or an executive, administrative, or professional 
employee, provided the written comments or data are kept in the 
sole possession of the author of the record; 
    (8) privileged information or information that is not 
discoverable in a workers' compensation, grievance arbitration, 
administrative, judicial, or quasi-judicial proceeding; 
    (9) any portion of a written or transcribed statement by a 
co-worker of the employee that concerns the job performance or 
job-related misconduct of the employee that discloses the 
identity of the co-worker by name, inference, or otherwise; and 
    (10) medical reports and records, including reports and 
records that are available to the employee from a health care 
services provider pursuant to section 144.335. 
    Sec. 2.  [181.961] [REVIEW OF PERSONNEL RECORD BY 
EMPLOYEE.] 
    Subdivision 1.  [RIGHT TO REVIEW; FREQUENCY.] Upon written 
request by an employee, the employer shall provide the employee 
with an opportunity to review the employee's personnel record.  
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 only once at 
any time within one year after separation. 
    Subd. 2.  [TIME; LOCATION; CONDITION.] 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.  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.  The employer may require that the review be made 
in the presence of the employer or the employer's designee.  
    Subd. 3.  [GOOD FAITH.] 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. 
    Sec. 3.  [181.962] [REMOVAL OR REVISION OF INFORMATION.] 
    Subdivision 1.  [AGREEMENT; FAILURE TO AGREE; COPY; 
POSITION STATEMENT.] (a) If an employee disputes specific 
information contained in the employee's personnel record: 
    (1) upon the written request of the employee, the employer 
shall provide a copy of the disputed information, and may charge 
a fee for the copy not to exceed the actual cost of making and 
compiling the copy; 
    (2) the employer and the employee may agree to remove or 
revise the disputed information; and 
    (3) if an agreement is not reached, the employee may submit 
a written statement specifically identifying the disputed 
information and explaining the employee's position. 
    (b) 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. 
    Subd. 2.  [DEFAMATION ACTIONS PROHIBITED.] (a) No 
communication by an employee of information obtained through a 
review of the employee's personnel record may be made the 
subject of any action by the employee for libel, slander, or 
defamation, unless the employee requests that the employer 
comply with subdivision 1 and the employer fails to do so. 
    (b) 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 
2 may be made the subject of any common law civil action for 
libel, slander, or defamation unless:  
    (1) the employee has disputed specific information 
contained in the personnel record pursuant to subdivision 1; 
    (2) the employer has refused to agree to remove or revise 
the disputed information; 
    (3) the employee has submitted a written position statement 
as provided under subdivision 1; and 
    (4) the employer either (i) has refused or negligently 
failed to include the employee's position statement along with 
the disputed information or thereafter provide a copy of the 
statement to other persons as required under subdivision 1, or 
(ii) thereafter communicated the disputed information with 
knowledge of its falsity or in reckless disregard of its falsity.
    (c) A common law civil action for libel, slander, or 
defamation based upon a communication of disputed information 
contained in an employee's personnel record 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. 
    Sec. 4.  [181.963] [USE OF OMITTED PERSONNEL RECORD.] 
    Information properly belonging in an employee's personnel 
record that was omitted from the personnel record provided by an 
employer to an employee for review pursuant to section 2 may not 
be used by the employer 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.  
    Sec. 5.  [181.964] [RETALIATION PROHIBITED.] 
    An employer may not retaliate against an employee for 
asserting rights or remedies provided in sections 1 to 6. 
    Sec. 6.  [181.965] [REMEDIES.] 
    Subdivision 1.  [GENERAL.] In addition to other remedies 
provided by law, if an employer violates a provision of sections 
1 to 5, the employee may bring a civil action to compel 
compliance and for the following relief:  
    (1) for a violation of sections 1 to 4, actual damages 
only, plus costs; and 
    (2) for a violation of section 5, actual damages, back pay, 
and reinstatement or other make-whole, equitable relief, plus 
reasonable attorney fees. 
    Subd. 2.  [LIMITATIONS PERIOD.] Any civil action maintained 
by the employee under this section must be commenced within one 
year of the actual or constructive discovery of the alleged 
violation. 
    Sec. 7.  [181.966] [ADDITIONAL RIGHT OF ACCESS TO RECORDS.] 
    Sections 1 to 6 do not prevent an employer from providing 
additional rights to employees and do not diminish a right of 
access to records under chapter 13. 
    Presented to the governor May 30, 1989 
    Signed by the governor June 1, 1989, 11:16 p.m.