The Maine Supreme Judicial Court recently rebuked an employer's efforts to narrowly define what constitutes a "personnel file" and thereby limit the employee's access to investigative notes the employer had declined to place "in the file."  In Harding v. Wal-Mart an employee of Wal-Mart was fired when its internal investigation revealed that she was involved in the unauthorized removal of company property.  After her discharge, the employee requested in writing copies of her personnel file.  She claimed that the employer's investigative records were part of her "personnel record" and that she was entitled to them.  Wal-Mart did not provide the investigation documents.  The former employee sued to compel production of the documents.

Disagreeing with Wal-Mart, the Law Court held that internal investigative reports relating to this theft incident, which led to the employee's termination, fell under the plain language of Maine's statute defining what a "personnel file" is.  Maine's statute, 26 M.R.S.A.§ 631 states in pertinent part:
"[A] personnel file includes, but is not limited to, any formal or informal employee evaluations and reports relating to the employee's character, credit, work habits, compensation and benefits and nonprivileged medical records or nurses' station notes relating to the employee that the employer has in the employer's possession.  Records in a personnel file may be maintained in any form including paper, microfiche or electronic form.  The employer shall take adequate steps to ensure the integrity and confidentiality of these records."
The Court reasoned that the former employee was entitled to the investigatory records because they fell within the broad categories of records relating to the employee's character and work habits.  The Court also stated that the Legislature could exempt investigative records from the definition of "personnel file" but to date it has not done so.
What does this decision mean to employers?  It means that a company's internal investigations into employee misconduct may be subject to disclosure if an employee or former employee requests the information.  Even conducting an investigation at the request of counsel may not be sufficient to keep investigations privileged.  Therefore, follow prudent documentation guidelines.  Make sure that all observations and written notes are objective and that employee statements are quoted directly as much as possible.  If records are disclosed, ensure that they reflect that the employer was thorough and even-handed in its investigation approach.