There are three demands former Minnesota-based employees can make post-termination that should send all kinds of red flags to an employer. They are often made via email and seem like innocent enough requests. Not so! Fun fact: terminated employees are entitled to demand three things post-termination: (1) a copy of their personnel file; (2) a statement of the reasons for their termination; and (3) all wages be paid within 24 hours.
All three of these demands are statutory rights former employees have (meaning yes, they are entitled to it by law – and within a certain period of time). Many employees don’t know this unless they have either been in litigation before, have an attorney or HR friend or relative in the background that they have been complaining to, or already have an attorney lined up to make a claim against the employer. Thus, the red flag. Let me break it down…
Terminated Employee’s Personnel File.
I know what you’re thinking, in the words of MC Hammer – U Can’t Touch This! Not so. Minnesota employees have the right, upon written request, to review their personnel file every six months. Terminated employees have the right to review their personnel file once per year following termination, for as long as the personnel file is kept. Minn. Stat. 181.961. As to terminated employees, an employer has 7 working days to make the file available for review, 14 working days if the file is maintained outside of Minnesota. If the terminated employee asks for an actual copy (which is almost always the case), the employer must provide a copy; even if they ask to review, it is often simpler to just send the employee a copy. An employer need not provide a current employee with a copy of his or her personnel file (review only is acceptable).
Keep in mind, however, that a request for a copy of a personnel file is usually indicative of conflict brewing. Don’t take this request lightly. Ensure that you produce all the “personnel record” documents as defined by Minnesota law (Minn. Stat. 181.960) – often employers will forget to produce records not normally stored in a hard copy personnel file such as payroll records, medical records, time cards, performance evaluations, unemployment documentation, grievances, time off requests, and the like.
Honestly, the statute defining “personnel record” is horrible. It pretty much says this – everything related to an employee kept by the employer is a “personnel record” except…and then it lists all the things that are not part of such record. For example, an employer does not need to turn over information such as: written references; investigations (unless completed); certain education records; results of employee testing (except for cumulative test score); information relating to the employer’s salary system and staff planning; written comments about other employees; privileged information; medical reports and records available to the employee from a health care services provider.
Statement of Reasons for Termination.
Terminated employees may request the “truthful reason” for his or her termination within 15 working days of termination. Minn. Stat. 181.933. Once the employer receives this written notice, the employer has 10 working days to inform the employee, in writing, of the reason why the employee was terminated. This statement is not subject to any action for defamation, libel or slander. This is the time, folks, to put “Minnesota Nice” on the back burner. You got it – it’s Hammer Time!
An employer’s statement of reasons for termination is often “Exhibit A” in a MnDOLI or EEOC Charge, demand, or lawsuit. Thus, it should be carefully drafted. For example, if an employer states in the statement that the employee was terminated due to a downsizing, and it was really poor performance, insubordination, and poor attendance – those reasons will not stand muster in a later defense. Simply, the employer has no credibility and the Courts are likely to give any other reason for termination deference. If the facts and evidence support the employee was terminated for poor performance, insubordination, and poor attendance – that should be clear in the statement. This is not a one paragraph letter as I have seen! If applicable, it should have specific examples, citations to policies, references to prior warnings and the like.
Payment of All Wages Due and Owing Within 24 Hours.
This one, I know you all know, as I just wrote about it in my post a few weeks ago. To sum, (with some exceptions) an employee is entitled to pay within 24 hours of demand following termination. Minn. Stat. 181.13-.14.
Well, there you have it – my Friday Fun Fact. Three simple demands can speak volumes, not as well as MC Hammer, but enough – treat them like a red flag warning and put the hammer down!