Hoey & Farina receives many questions from railroaders about workplace privacy and the right to access personnel records. In my profession career, I have served as an arbitrator for nine years in the private and public sectors.
In this position, I would hear arguments concerning the invasion of an individual's privacy rights in the workplace, the employer's failure to allow an employee access to his personnel record, or the improper use of the personnel file by the employer. These same issues are very present today in the rail industry.
A RIGHT TO PRIVACY?
Arbitrators have attempted to strike a balance between the personal rights of the employee and the rights of the company in the conduct of the business. Where employees are governed by a collective bargaining agreement, the parties have the ability to negotiate what specific conduct by the employer is acceptable in the workplace. When such issues as workplace surveillance or employee searches have occurred, arbitrators have held that the employer must not act in a discriminatory, capricious, arbitrary, or unreasonable manner, but must have a reasonable basis for its actions. Although negotiated agreements can allow employers to conduct these types of activities, the employer's conduct may still be subject to state and federal laws governing employees' rights in the workplace.
Generally speaking, if a collective bargaining agreement is silent on a particular privacy issue or employer conduct, an employer may not unilaterally institute a practice without bargaining with the union. If the employer elects to do so the railroad union should protest the company's actions immediately in writing. The grievance may not be sustained in arbitration but it is important to bring “notice” to the company that its unilateral action is not acceptable to the represented employees.
In private arbitration matters, labor and management representatives have disagreed as to the admissibility in arbitration of evidence obtained by breaking into employee's locker, forcible search of his person, secret surveillance, and other such means. The broad question for an arbitrator to decide has been whether, absent a constitutional right or a right specified in the contract, to reject evidence because the manner in which it has been obtained is reprehensible or distasteful to the arbitrator or because it is the arbitrator's opinion that labor-management relations would be better served by such exclusion. In response arbitrators have differed significantly as to the use of such evidence, though they have been inclined to accept and rely upon such evidence.
REVIEWING PERSONNEL RECORDS
Labor agreements also frequently establish conditions on the maintenance and disclosure of personnel records. The agreements may specify the types of records and the length of time they may be included in employees' personnel files, the rights of access by employees to their files, and so forth. A supervisor's maintenance of private records on his subordinates for later use in personnel transactions may violate a provision requiring that all such records be kept in the personnel files accessible to the employees.
In Illinois, state law provides an employee has the right to seek review of his personnel records up to two times per year and for up to one year after leaving employment. Although certain documentation is exempt, an employee must be provided an opportunity to inspect his personnel records. If the employer refuses, the employee may file a complaint with Illinois Department of Labor (IDOL).
The Illinois Personnel Records Review Act also allows an employee to obtain a copy of the information or part of the information contained in your record. The employer is allowed to charge a fee for providing a copy of the report; however, the fee is limited to the actual cost of duplicating the information.
At Hoey & Farina, we have received questions on these issues and wanted to share an opinion with you. We encourage you to review your collective bargaining agreement to better understand your specific rights regarding workplace privacy and access to your personnel record. Please understand that you, the working railroader, may have to comply with certain written procedures set by the railroad before you will be given access to your files.