Colorado State Archives
Executive Orders from the Administration of Governor Bill Owens 1999-2005
May 25, 2005
The Honorable Colorado House of Representatives
Sixty-Fifth General Assembly
First Regular Session
Denver, CO 80203
Ladies and Gentlemen:
I am filing with the Secretary of State House Bill 05-1115 "Concerning An Employee's Right To Access Information In His Or Her Personnel Files Maintained By A Current Or Previous Employer." I vetoed this bill as of 12:20 p.m. today and this letter sets forth my reasons for doing so.
H.B. 1115 purports to allow employees access to existing personnel files maintained by current or former employers. In practice, H.B. 1115 fundamentally changes current employment practices for all Colorado employers by broadly defining what constitutes a "personnel file" and imposing harsh monetary penalties if the personnel files are not maintained in the manner contemplated by the bill.
Perhaps the most concerning component of H.B. 1115 is the manner in which it defines "personnel file." According to H.B. 1115, a personnel file consists of "…documents or records retained by the employer regarding an employee or former employee that concern qualifications for employment, transfer, compensation, termination or discipline." Such a vague and ambiguous definition is open to varying degrees of interpretation and could arguably include every single document that ever existed in a company, both paper and electronic, which pertains to the employee, regardless of the nature or relevance of the documents. This could include any notes recorded and held by a supervisor at any level of the firm or any e-mail that relates to any of the subjects set forth in the definition of personnel file. Of concern is that e-mails, which might never have been printed out and placed in a personnel file, would fall under the mandates of H.B. 1115.
H.B. 1115 incorrectly assumes that all Colorado employers maintain – or have the resources to maintain – complete, updated and comprehensive files on each employee. While employer practices differ greatly with respect to the maintenance of personnel files, H.B. 1115 implements a single uniform and unrealistic standard, which fails to take into account the varying degree of resources available to Colorado employers. For example, H.B. 1115 would disproportionately impact small businesses, which have fewer resources to implement human resources policies and access legal advice.
The government interference proposed by H.B. 1115 would place a costly burden on Colorado employers and would cause an increase in employment litigation. If H.B. 1115 became law, it would further erode Colorado's at will employment system, by providing employees with an additional cause of action based on an employers' failure to maintain personnel files pursuant to the all encompassing requirements of H.B. 1115. There is also the possibility that such a broad and vague definition of personnel file could be used by a disgruntled employee to harass an employer or try and create a cause of action where no controversy exists.
H.B. 1115 allows for penalties of up to $5,000 where an employer fails to provide an employee with the requested documents within 30 days and penalties of up to $10,000 where an employee can demonstrate intent on the part of the employer to conceal documents. Inevitably, these penalty provisions will breed ancillary litigation over whether the personnel file has been produced in full and whether there has been intentional concealment by the employer. Disputes may also arise under this bill regarding whether employers must produce documents that contain confidential and proprietary information. Finally, litigation will almost certainly arise concerning what documents must be included in a personnel file pursuant to the definition contained in H.B. 1115. Accordingly, I have vetoed this bill.
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