A law without enforcement is just good advice: true for Colorado’s new rule for personnel files?

filesEffective January 1, 2017, most Colorado private sector employers must provide employees access to their personnel file upon request. The new law, to be codified at C.R.S. § 8-2-129 (2017), which passed with bipartisan support, seeks to deter frivolous employee lawsuits by fostering an environment of open communication between employer and employee. In the case of current employees, access must be provided at least once annually, while former employees are allowed one formal inspection post-separation.

Under the law’s definition, “personnel files” include records that can qualify an employee for hiring, promotion, additional compensation, disciplinary action, or employment termination. Foremost among the numerous exclusions from this definition are documents required to be placed or maintained in a separate file by state or federal law.

If your employment agreement attempts to apply law of a jurisdiction not allowing such access, there may be potential conflict of laws implications given the legislative declaration that it is Colorado’s public policy that employees have such access.

Since the general assembly has not authorized any private cause of action, is there an echo of Lincoln’s maxim, that a law without enforcement is just good advice? On the contrary, since employers failing to comply can face an audit from the Colorado Department of Labor or an investigation from the Department of Regulatory Agencies, this law is more than mere advice.

Employment counsel at Robinson Hungate PC are equipped to address any employer compliance issues, including those involving C.R.S. § 8-2-129.