On June 22, 2010 the Michigan Court of Appeals issued a published opinion concluding that the statutory definition of "personnel record" in the Bullard-Plawecki Employee Right to Know Act (ERKA) excludes notes of a grievance investigation.

In Wright v. Kellogg Company, Dennis Wright a 35 year employee of Kellogg received a disciplinary action that included a 34-day suspension. Dissatisfied with the grievance process, Wright requested copies of his personnel records related to the grievance. Kellogg's human resources department informed Wright that the requested records were company property and would not be produced. When Wright's attorney subsequently requested his personnel record, Kellogg again advised that the grievance notes were not included in the personnel file and would not be released. Wright filed suit alleging that Kellogg's refusal to release the notes violated the ERKA.

The Court's Decision

The Court stated that the statutory definition of a "personnel record" in the ERKA, includes a record that identifies the employee and "is used or has been used, or may affect or be used relative to that employee's . . . disciplinary action." The Court noted that the EKRA excludes "[r]ecords limited to "grievance investigations which are kept separately" and are not used relative to the "employee's qualifications for employment, promotion, transfer, additional compensation, or disciplinary action."

The Court concluded that Kellogg's five-step grievance process fell within the plain meaning of a "grievance investigation," since it was a systematic or official inquiry into the matter.

Concluding without analysis that the grievance investigation process was limited in scope and had not been used relative to Wright's "qualifications for employment, promotion, transfer, additional compensation, or disciplinary action," the Court found that the notes fell within the plain meaning of the "grievance investigation" exclusion and therefore did not need to be released as part of the employee's personnel record.

Takeaway for Employers

The Court's opinion in Wright glossed over the second component of the "grievance investigation" exclusion: that the record not be used, or have been used, affect, or be used relative to an employee's qualifications for employment, promotion, transfer, additional compensation or disciplinary action. Grievance investigation notes that are used for one of the aforementioned purposes, would clearly fall outside of the exclusion.

Employers should exercise caution before automatically excluding grievance investigation notes from an employee's personnel record, analyzing first whether the records were used, could be used or affect an employment decision relative to the employee. The ERKA prevents an employer who intentionally excludes documents that should have been included in the personnel record, from using that information during litigation or a quasi-judicial proceeding. Employers do not want to find themselves in a lawsuit or administrative hearing unable to use documents that support an employment decision.

If you have questions about the Wright decision, or how it impacts an employer's decision about the content of a personnel record, please contact Tracy A. Leahy at (313) 965-8533 - tleahy@clarkhill.com, or one of the attorneys in Clark Hill's Labor & Employment Practice Group.

To find out more about Clark Hill and our Labor and Employment Practice Group, visit clarkhill.com or call 800.949.3124

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