How to obtaining personnel and investigative files after an illegal termination?

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How to obtaining personnel and investigative files after an illegal termination?

I was illegally fired from my job because I asked for 2 weeks off for annual training for the army national guard. When I asked my employer for my personnel and investigative file he told me to call corporate and corporate in turn told me to call the store and that they are required by law to keep a copy. Is this true?

Asked on May 25, 2012 under Employment Labor Law, Montana

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

The law does not specifically require employers to keep personnel files--it's perfectly legal, for example, for an employer to never keep personal files and never document performance, reviews, reasons for termination, etc.

Also, even if the employer does have employee or personnel files, it does not have to provide them to employees or ex-employees unless the employee sues the employer and uses the mechanisms of discovery (such as requrests to produce documents) to obtain the files. (Or unless a goverment agency, like the U.S. Attorney's Office, brings a legal action).

If you think you were fired because of your guard duty or training, you may have a claim for re-employment or monetary compensation. You could either retain your own attorney to bring a lawsuit, or you could try contacting the U.S Attorney's office for your district--when I was at the U.S attorney's office as an intern while in law school, we helped reservists who were fired due to their reserve duty, so the U.S. Attorney's Office may take this case for you.

In any event, the way to get whatever documentation exists--as well as to compel testimony--is to initiate a legal action, during which there are mechanisms for getting evidence and testimony.


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