button Vol. 6
No. 1
Spring 2001


Bush Issues New Directives
line Sex: "Major Life Activity"?
line Internal Investigation Records Ruling
line Unfair Labor Act Judgement
line Romance In The Workplace Revisited
line Collective Bargaining Impasse Issue
line Briefs

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News on Personnel, Labor Relations and Benefits

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button Internal Investigation Records Ruling

Internal Investigation Records Ruled
Part of Personnel File

Maine Wal-Mart Store Required to Turn Over
Investigation Records to Ex-employee

If there is a question about which records are part of an employee's personnel records your state law may be the deciding factor for you. This year the Maine Supreme Judicial Court affirmed two earlier judgements that found that Wal-Mart's internal investigation records were in fact part of an employee's personnel file.

An employee who was fired from Wal-Mart in Palmyra Maine requested the records relating to the internal investigation that led to her termination. Wal-Mart refused and a District Court hearing required them to produce the file at the employee's request.

The case is known as NANCY A. HARDING v. WAL-MART STORES, INC.


Harding was terminated from her employment at the Palmyra Wal-Mart. The reason given for her termination was the "unauthorized removal of company property". A loss prevention district supervisor for Wal-Mart, James Bryant, had conducted an investigation into an internal loss at the Wal-Mart store in Palmyra. Bryant interviewed several witnesses and obtained statements from them. Bryant also interviewed Harding, who wrote a two-page statement. Based on Bryant's investigation, management of the Palmyra store terminated Harding's employment.

Bryant is a Wal-Mart employee. After Harding was terminated, Bryant retained the statements and his notes on the investigation in a separate file which he kept in an office located in his home. In accordance with Wal-Mart's policy, Bryant did not put copies of the investigative records in Harding's personnel file.

After she was discharged, Harding wrote to the store manager explaining her version of the events, but received no response. She then requested, first orally and then in writing, a copy of her personnel file. In her written request, she specifically asked for the documents relating to the investigation. In response, Wal-Mart twice gave her documents that included her evaluations, pay scale, application for employment, and a one-page "Exit Interview" form. This form simply stated that she was involuntarily terminated for the "unauthorized removal of company property." Wal-Mart did not, however, provide Harding with any of the statements or notes relating to Bryant's investigation.

Harding then filed this action seeking access to the investigative records pursuant to 26 M.R.S.A. § 631. Although Wal-Mart eventually provided Harding a copy of the statement she had given to Bryant, as well as a copy of the letter she had sent to the store manager after her termination, it did not release to her any other records contained in Bryant's investigative file.

After a hearing, the District Court held that the investigative records were components of Harding's personnel file pursuant to 26 M.R.S.A. § 631 and that Wal-Mart was required to produce the file at Bryant's request. The court found that Wal-Mart's failure to do so was in bad faith, assessed a civil forfeiture of $500, and required Wal-Mart to reimburse Harding for her reasonable attorney fees.

Wal-Mart appealed to the Superior Court pursuant to M.R. Civ. P. 76D. The Superior Court affirmed the judgment of the District Court, and Wal-Mart filed this appeal.


Wal-Mart argued that materials regarding an internal investigation conducted by an employer do not constitute personnel records within the meaning of section 631. First because such records are not identified by name in the language of section 631, and second, because inclusion of investigatory records in personnel files would be contrary to public policy.

Here is exactly what the section says:

26 M.R.S.A. § 631 (Supp. 2000) provides in pertinent part,

For the purpose of this section, a personnel file includes, but is not limited to, any formal or informal employee evaluations and reports relating to the employee's character, credit, work habits, compensation and benefits and nonprivileged medical records or nurses' station notes relating to the employee that the employer has in the employer's possession.

End quote.

The court noted that the Legislature did not limit documents included in a personnel file to those records physically included within a particular file folder; rather, the language of the statute makes it applicable to any such records "the employer has in the employer's possession."

They also noted that: "the Legislature used broad category descriptors rather than an extensive list of specifically designated records to describe the contents of a personnel file. The use of such broad descriptors in this context is both sensible and reasonable. Employment related records may be given many different labels. The records at issue, for example, are referred to by the parties as investigative records. They could as easily have been called 'loss prevention records,' 'internal inquiries,' or 'employee conduct records.' Accordingly, an attempt on the part of the Legislature to identify each type of record by name could become a fruitless pursuit and lead to avoidance of the statute's reach simply by use of inventive labels."

The court felt that the plain language of at least two of the general categories set out in section 631 was designed to encompass such records. Records "relating to the employee's character . . . [or] work habits" were felt to encompass records pertaining to an alleged theft by the employee.

Wal-Mart argued that nonetheless that there were numerous policy reasons for ignoring the plain language of the statute. Among them are:

  1. ensuring the confidentiality of witness statements and allowing employers the ability to conduct a meaningful investigation;
  2. maintaining the confidentiality of records that may be used by law enforcement in later criminal investigations;
  3. protecting the employees' interests by maintaining the confidentiality of investigations which, if kept in the personnel files, could be subject to disclosure in a variety of settings such as workers' compensation proceedings and civil actions; and
  4. protecting employers from having to disclose potentially defamatory witness statements and notes taken during investigations should the allegations turn out to be baseless.

In addition, Wal-Mart asserted that other states with similar statutes have specifically excluded internal investigations from the definition of personnel file.

The Maine Supreme Judicial Court ruled that the District Court had correctly concluded that the records sought by Harding relate to her "character" and "work habits." The court affirmed the judgement that such records in the possession of the employer, whether or not they are physically placed in a file labeled "personnel file," are part of the employee's personnel file for purposes of 26 M.R.S.A. § 631.


This case has some interesting points about the sensitivity and ultimate fate of employee records kept by an employer. It pays to be careful, and thoroughly understand your state laws in relation to your policy on employee records.

Braun Consulting Group as an independent contractor can normally retain as our property any documents we create in preparing an investigative report for our clients. As part of our personal property used in the production of our report the documents are not normally construed to be part of an employer's file that could be a "Personnel File" no mater how broad the language of the state law. Our notes can be excluded from an employee request for their records.

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