By: David S. Levine
The Illinois General Assembly has enacted significant amendments to the Illinois Personnel Record Review Act (the “Act”) that took effect on January 1, 2025. The amendments provide guidelines for the record request process and expand both employee rights and employer obligations under the Act.
An Important Law, Confusingly Worded
The Illinois Personnel Record Review Act has long provided employees and former employees with the right to review their personnel records. Under the Act, current employees and former employees who have terminated service within the preceding year (hereinafter “employees”) are entitled, with some exceptions, to inspect personnel documents that are, have been, or are intended to be used in determining their qualifications for employment, promotion, transfer, additional compensation, discharge, or other disciplinary action.
Although the Act is regularly invoked by employees seeking to review their personnel files (often in advance of a lawsuit), the prior version of the Act provided ill-defined guidelines regarding the request process and the scope of available documents. Those guidelines sometimes created uncertainty regarding, for example, what exactly needed to be produced. The amendments have clarified the process.
Clarifying Amendments
The amendments introduce various changes to the Act, but likely the most important ones pertain to the request process and scope of documents available to employees.
Request Process. The amendments have clarified several items with respect to the request process. In particular, as of January 1, 2025, all requests must be in writing (which includes electronic formats such as email and text) and directed to a “person responsible for maintaining the employer’s personnel records, including the employer’s human resources department, payroll department, the employee’s supervisor or department manager, or to an individual as provided in the employer’s written policy.” Employees must also specify in the request what personnel records the employee is requesting, whether the employee is requesting to inspect, copy, or receive copies of the records, their preferred format for the records, and whether a representative of the employee will be involved in the inspection process. For medical records, a signed release is required for representative access.
Production Scope. The scope of available documents has also been expanded. Employees are now ordinarily entitled to not only the qualification and disciplinary documents discussed above, but also to personnel documents concerning employee benefits. In addition, employees are also now ordinarily entitled to the following categories of documents: (1) any employment-related contracts or agreements that the employer maintains are legally binding on the employee; (2) any employee handbooks that the employer made available to the employee or that the employee acknowledged receiving; and (3) any written employer policies or procedures that the employer contends the employee was subject to and that concern qualifications for employment, promotion, transfer, compensation, benefits, discharge, or other disciplinary action.
In a more welcome development for employers, however, the amendments expressly state that an employer need not produce its “trade secrets, client lists, sales projections, and financial data.” In addition, the amendments provide that if the records are maintained in a manner that is already accessible to the employee, the employer may instead provide the employee with instructions on how to access the records.
Employer Takeaways
Given the amendments discussed above, Illinois employers should consider taking the following actions:
- Adjust Document Management Systems: Employers should consider reviewing their document management systems to facilitate the production of required materials under the Act. In particular, many employers have employee-specific subfolders that house documents pertaining to the employee. Going forward, employers should consider expanding these subfolders, as necessary, to include all of the documents covered by the Act. Doing so should ease the compliance process following an employee request under the Act, as employers typically have only seven days to produce the required materials after a request.
- Implement Internal Procedures: Relatedly, employers should also develop internal procedures for handling requests. That includes designating and training specific personnel to receive requests, establishing protocols for processing requests within the mandated timeframes, and creating documentation systems to track compliance.
- Recognize Exceptions: Although not a focus of the amendments (and thus this article), the Act contains several exceptions that employers can invoke under certain circumstances to withhold documents. Employers should be aware of these exceptions and—particularly if the production involves sensitive materials or the prospect of forthcoming litigation—should likely consult with counsel before producing.
Given the recent effective date, Illinois employers should take the opportunity now to ensure that they understand the new obligations and will be ready to comply in the coming year. Please contact Steve Brenneman, Kelly Smith Haley, David Levine, or the Fox Swibel attorney with whom you regularly work to discuss these issues.
About the Author
David Levine is a partner in the Firm’s Employment Law and Litigation Groups. David’s practice focuses on representing clients in a wide range of labor and employment matters, as well as other business disputes. As part of his litigation practice, David regularly defends employers in class, collective, and individual actions involving claims under the FLSA, Title VII, ADA, and other federal and state statutes. David also often litigates individual and class actions involving data privacy issues, in particular cases under the Illinois Biometric Information Privacy Act (BIPA). He practices in state and federal courts and before administrative agencies such as the EEOC, DOL, and DOJ.
This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.