CHAPTER 7. Employment Practices
Subchapter IV. Right to Inspect Personnel Files
This subchapter may be cited as the “Right to Inspect Personnel Files Act.”64 Del. Laws, c. 473, § 1; 66 Del. Laws, c. 337, § 1;
As used in this subchapter:
(1) “Employee” means any person currently employed, laid off with reemployment rights or on leave of absence. The term “employee” shall not include applicants for employment or designated agents.
(2) “Employer” shall mean any individual, person, partnership, association, corporation, the State, any of its political subdivisions or any agency, authority, board or commission created by them.
(3) “Personnel file” means, if maintained by the employer, any application for employment, wage or salary information, notices of commendations, warning or discipline, authorization for a deduction or withholding of pay, fringe benefit information, leave records, employment history with the employer, including salary information, job title, dates of changes, retirement record, attendance records, performance evaluations and medical records. The term “personnel file” shall not include records of an employee relating to the investigation of a possible criminal offense, letters of reference, documents which are being developed or prepared for use in civil, criminal or grievance procedures or materials which are used by the employer to plan for future operations or information available to the employee under the Fair Credit Reporting Act [15 U.S.C. §§ 1681-1681t].64 Del. Laws, c. 473, § 1; 66 Del. Laws, c. 337, § 1;
An employer shall, at a reasonable time, upon request of an employee, permit that employee to inspect that employee’s own personnel files used to determine that employee’s own qualifications for employment, promotion, additional compensation, termination or disciplinary action. The employer shall make these records available during the regular business hours of the office where these records are usually and ordinarily maintained, when sufficient time is available during the course of a regular business day to inspect the personnel files in question. The employer may require the requesting employee to inspect such records on the free time of the employee. At the employer’s discretion, the employee may be required to file a written form to request access to the personnel file. This form is solely for the purpose of identifying the requesting individual to avoid disclosure to ineligible individuals. To assist the employer in providing the correct records to meet the employee’s need, the employee shall indicate in the written request either the purpose for which the inspection is requested or the particular parts of the employee’s personnel record which the employee wishes to inspect.64 Del. Laws, c. 473, § 1; 66 Del. Laws, c. 337, § 1; 70 Del. Laws, c. 186, § 1;
Nothing in this subchapter shall be construed as a requirement that an employee be permitted to remove the employee’s own personnel file, any part thereof or a copy of the contents of such file from the place of the employer’s premises where it is made available for inspection. The taking of notes by employees is permitted. The employer shall retain the right to protect the employer’s files from loss, damage or alteration to insure the integrity of the files. The employer may require inspection of the personnel file in the presence of a designated official. The employer must allow sufficient inspection time, commensurate with the volume content of the file. Except for reasonable cause the employer may limit inspection to once every calendar year.64 Del. Laws, c. 473, § 1; 66 Del. Laws, c. 337, § 1; 70 Del. Laws, c. 186, § 1;
If upon inspection of the employee’s personnel file an employee disagrees with any of the information contained in such file or records, removal or correction of such information may be agreed upon by such employee and the employee’s employer. If such employee and employer cannot agree upon such removal or correction then such employee may submit a written statement explaining the employee’s position. Such statement shall be maintained as part of such employee’s personnel file or medical records and shall accompany any transmittal or disclosure from such file or records made to a third party.64 Del. Laws, c. 473, § 1; 66 Del. Laws, c. 337, § 1; 70 Del. Laws, c. 186, § 1;
(a) Any employer who refuses an employee access to personnel files as provided in this subchapter shall be deemed in violation of this subchapter and shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation. A civil penalty claim may be filed in any court of competent jurisdiction.
(b) Any employer who discharges or in any manner discriminates against an employee because that employee has made a complaint or has given information to the department pursuant to this subchapter, or because the employee has caused to be instituted or is about to cause to be instituted any proceedings under this subchapter, or has testified or is about to testify in any such proceedings, shall be deemed in violation of this subchapter and shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.64 Del. Laws, c. 473, § 1; 66 Del. Laws, c. 337, § 1; 69 Del. Laws, c. 294, § 11; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 460, § 3;
(a) Definitions. — (1) “Personal identifying information” means an employee’s first name or first initial and last name in combination with any 1 of the following data elements that relate to the employee, when either the name or the data elements are not encrypted: Social Security number, passport number, driver’s license or state identification card number, insurance policy number, financial services account number, bank account number, credit card number, debit card number, tax or payroll information or confidential health care information.
(2) “Record” means information that is inscribed on a tangible medium, or that is stored in an electronic or other medium and is retrievable in perceivable form on which personal identifying information is recorded or preserved. “Record” does not include publicly available directories or sources containing information an employee has voluntarily consented to have publicly disseminated or listed or which is disseminated as provided for by applicable law or regulation, such as name, address, or telephone number, or other directories or sources as are derived solely from such directories or sources.
(b) In the event that an employer seeks permanently to dispose of records containing employees’ personal identifying information within its custody and control, such employer shall take all reasonable steps to destroy or arrange for the destruction of each such record by shredding, erasing, or otherwise destroying or modifying the personal identifying information in those records to make it unreadable or indecipherable.
(c) An employee who incurs actual damages due to a reckless or intentional violation of this section may bring a civil action against the employer.79 Del. Laws, c. 423, § 1;