Oakland University, a southeast Michigan public university, was sued on November 1, 2013 by its former women’s basketball coach Beckie Francis. The lawsuit seeks injunctive relief and declaratory relief, as well as seeks to compel Oakland University to produce certain employee records concerning Ms. Francis pursuant to Michigan’s Bullard-Plawecki Employee Right to Know Act.

While this lawsuit is only in the early stages of the litigation process and is bogged down in a morass of procedural issues, it does provide Michigan employers with a good reminder as to their obligations when it comes to complying with this statute and providing former employees documents maintained in their employee file.

Factual Events Leading up to the Request for her Personnel File

Ms. Francis was previously fired in June 2013 (notably, the firing occurred within hours of her husband retiring from his position as president of the university). After her firing it was reported by the Detroit Free Press (by David Jesse) that Ms. Francis  was mentally and emotionally abusing her players, was “obsessed” with the players’ eating habits and body fat and refused to follow orders to separate her religion from her coaching.

Michigan Law and an Employee’s Right to Review his or her Personnel Record

Specifically, under Michigan’s statute, an employee may review his or her personnel record at reasonable intervals, generally not more than twice in a calendar year. The employer must make the record available at a location reasonably near the employee’s place of employment and during normal office hours.

The Act limits the definition of a “personnel record” to “a record kept by the employer that identifies the employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation, or disciplinary action.” MCLA 423.501(2)(c). Importantly, some documents which may otherwise fall within this definition are still excluded from production under the Act.

Examples of what employers may properly exclude from production include:  

• Employee references supplied to an employer if the identity of the person making the reference would be disclosed;
• Materials relating to the employer’s staff planning with respect to more than one employee, including salary increases, management bonus plans, promotions, and job assignments;
• Medical reports and records made or obtained by the employer if the records or reports are available to the employee from the doctor or medical facility involved;
• Information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of the other person’s privacy;
• Information that is kept separately from other records and that relates to a criminal investigation by the employer;
• Records limited to grievance investigations that are kept separately and are not used to determine the employee’s qualifications for employment, promotions, transfer, additional compensation or disciplinary action;
• Records maintained by an educational institution that are directly related to a student and are considered to be education records under the Family Educational Rights and Privacy Act; and 
• Records kept by an executive, administrative, or professional employee that are kept in the sole possession of the maker of the record, and are not accessible or shared with other persons.

However, what may ultimately be properly excluded is a common issue employers face and that issue is the cornerstone of the dispute in the Francis lawsuit. In that regard, it appears from the court records filed in this lawsuit both parties are fighting over what is required to be produced and what may be withheld with respect to an investigation report created by Oakland University.

The University has taken the position that a report at issue details an investigation that was not just regarding Ms. Francis, but also concerned the program and conduct of other employees. Further, the allegations triggering the investigation–particularly the allegations relating to Ms. Francis –were asserted by students about her treatment of them as students. Oakland University also claims the report contains the conclusions, impressions, and recommendations of legal counsel, which is another basis for withholding the production documents under Michigan’s employee personnel file disclosure statute.

Penalties for Violating Employee’s Right to Review their Personnel File

If an employer is found to have failed to comply with Michigan’s Bullard-Plawecki Employee Right to Know Act, a court may order the employer to comply with it, as well as holding the employer in contempt. In addition, an employee is entitled to recover actual damages plus costs. Further, for a willful and knowing violation of the act, the penalty is $200 minimum damages plus costs, reasonable attorney fees, and actual damages.

For these reasons, it is important for your company to have in place a proper employee record keeping system, understanding what and what should not be kept in an employee personnel file, and a system in place for responding to employee requests to review their personnel files. 

If your company needs to respond to an employee’s request for his or her employee file or if you have questions about best practices for maintaining employee personnel files and records, feel free to contact Jason Shinn. He is a Michigan employment attorney who regularly handles federal and Michigan employment law compliance issues.