WHT Law

Employment Personnel Record Review Act

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Employment Personnel Record Review Act

The Employment Personnel Record Review Act, 820 ILCS 40/0.01 was enacted to remedy an “imbalance of power between an employer and an employee.” Prior the Act’s passage in 1985, an employee could be privy to personnel records only by “the kindness of the employer or through discovery in an actual case or controversy. There is a strong public policy to provide the employee rights of access to this vital data without undue burden.” Landwer v. Scitex America Corp., 606 N.E.2d 45 (Ill. App. 1st Dist., 1992). However, the 1985 version of the Act was declared unconstitutional by the Illinois Supreme Court in Spinelli v. The Board of Education of School District 150, Peoria County, 118 Il.2d 389 (1987). After the 1987 Spinelli case, the Act was modified to correct the provisions declared unconstitutional by the Illinois Supreme Court. Those modifications occurred in 1988.

We first discuss the 1987 analysis of the Act by the Illinois Supreme Court in Spinelli. We will then discuss how the Act was modified in 1988 and how it works today.

1987 Analysis of the Act by the Illinois Supreme Court

In Spinelli a teacher brought an action against a school district to require it to disclose certain documents in her personnel file. The Circuit Court in McHenry County entered a judgment in favor of the teacher and the school district appealed. The Appellate Court in 98 Ill. Dec. 269, 494 N.E.2d 196, held that the statute, which requires disclosure, is unconstitutionally vague. In a related cause a plaintiff, Florence Kamrath, a tenured public high school teacher, filed an action in the Circuit Court of Peoria County seeking to invalidate his suspension from teaching and to expunge the suspension from his record. Count I of plaintiff’s amended complaint alleged that the Board of Education violated the Act by denying his request for certain documents the Board considered in opposing his suspension. He moved for summary judgment but while his motion was pending the Appellate Court in Spinelli declared the Act unconstitutional.

There were then a series of procedural claims and the Illinois Supreme Court consolidated the actions and considered three issues: (1) whether the Act is unconstitutionally vague; (2) whether a local school board has the authority to suspend a tenured teacher for disciplinary reasons; and (3) if so, whether it must comply with the statutory hearing procedures applicable to the removal or dismissal of a tenure teacher. For the purposes of this memo, we deal only with whether the Employment Personnel Record Review Act was unconstitutionally vague.

Section 2 of the Act states:

Every employer shall…permit the employee to inspect any personnel documents which are, have been, or are intended to be used in determining that employee’s qualifications for employment, promotion, transfer, additional compensation, discharge or other disciplinary action, except as provided in Section 10. Ill. Rev. Stat., 1984 Supp., ch. 48, par. 2002.

Section 2 of the Act gives an employee the right to inspect personnel documents unless they fall within one of the exceptions enumerated in Section 10 of the Act, which then provided in part:

The right of the employee or the employee’s designated representative to inspect his or her personnel records does not apply to: (a) letters of reference for that employee; ….

(c) materials used by the employer for management planning, including but not limited to judgments, external peer review documents or recommendations concerning future salary increases or other wage treatments, management bonus plans, promotions and job assignments or other comments or ratings used for the employer’s planning purposes. Ill. Rev. Stat., 1984 Supp., ch. 48, pars. 2010(a), (c).

The Supreme Court agreed with the Appellate Court that the Act (as of 1985) was unconstitutionally vague.

Given these conflicting and inconsistent provisions, we do not believe that an employer of ordinary intelligence can determine with reasonable certainty which personnel documents are, or are not, subject to disclosure. We therefore agree with the Appellate Court that the Act is vague and uncertain and, therefore, is unconstitutional and that it violates the due process rights of employers. 515 N.E.2d at 1228.

The Court utilized an example provided by the Appellate Court in reaching its conclusion. Section 2 was in conflict with Section 10(c). Under the prior Section 2 an employee could inspect documents concerning his or her promotion. But under Section 10(c), management planning materials which are not subject to inspection include documents used in determining whether an employee is promoted.

In another example, Section 2 required disclosure of documents concerning an employee’s transfer, while Section 10(c) allowed an employer to withhold materials relating to job assignments. The Appellate court stated, “materials used in determining job assignments, given its plain and ordinary meaning, certainly can be said to encompass documents dealing with an employee’s transfer.” 494 N.E.2d at 196.

Thus, the Act in the 1987 Spinelli case was struck down as being unconstitutionally vague.

Modification of the Act

Section 10 was subsequently amended and re-enacted by the general assembly in P.A. 85-1393 effective September 2, 1988 (Ill. Rev. Stat. 1989, ch. 48, par. 2010), in order to harmonize the provisions of Section 2 and 10. For example, rather than alluding to “management planning” as the 1985 Act provided, the 1988 re-enactment of Section 10(c) stated that “materials relating to the employer’s staff planning, such as matters relating to the business’ development, expansion, closing or operational goals,” etc.. As it stands today the Act at 820 ILCS 40/2 is constitutional.

How the Act Works

An employee may request all or any part of his or her personnel records, except as provided in the exemption Section 10. An employer shall grant at least two inspection requests by an employee in any calendar year when the requests are made at reasonable intervals, unless otherwise provided in a collective bargaining agreement. An employer may require that an employee’s request be in writing on a form supplied by the employer. Once the request has been made, the employer will provide the employee with the inspection opportunity within seven (7) working days unless the employer can reasonably show that such a deadline cannot be met. The Act does not require that an employee be permitted to remove any part of the personnel records or any part of such records from the place on the employer’s premises where it is made available for inspection.

Exceptions include letters of reference, information of a personal nature, records relevant to any other pending claim between the employer and the employee which may be discovered in a judicial proceeding, as well as investigatory or security records maintained by an employer to investigate criminal activity by the employee which could reasonably be expected to harm the employer’s property, operation or business. As stated earlier, a key exception is materials relating to the employer’s staff planning, such as matters relating to the business’ development, expansion, closing or operational goals, where the materials relate to or affect more than one employee, “provided, however, that this exception does not apply if such materials are, have been or are intended to be used by the employer in determining an individual employee’s qualifications for employment, promotion, transfer, or additional compensation, or in determining an individual employee’s discharge of discipline.

Finally, Section 2013 involves records of an employee subject to DCFS investigations resulting in an unfounded report. According to the Act an employer cannot gather or keep records identifying an employee as the subject of such an investigation if the investigation resulted in an unfounded report. An employee, upon receiving written notification from DCFS that an investigation has resulted in an “unfounded” report, can take the written notification to his or her employer and have any record of that investigation expunged from the personnel record.