Personnel file

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In human resource management and labor law, a personnel file is understood to be a file or a collection of documents stored in electronic form ("digitized personnel file ") that the employer keeps about an employee and contains information about the person and the employment relationship in the company. Neither the form nor the content of personnel files are regulated by law. Also, due to electronic data processing, there are less and less extensive paper files that summarize all content. Only in civil service law are there statutory regulations on personnel files, such as Sections 106 ff. Of the Federal Civil Service Act . Even in military law , particularly in Soldatengesetz the Bundeswehr , the treatment of personnel files for active and former's soldiers explicitly regulated by law.

history

In administration, personnel files were sometimes called servant files until well into the 20th century . This had its origin in the " General Land Law for the Prussian States (ALR) " of 1794, which was the first time in legal form of "servants of the state". In the 19th century, Prussian civil servants were initially called “royal servants” and the term “servants” from the sovereign was also used until the term “civil servant” became established.

Legal basis

The collection of the documents relevant to the employment relationship by the employer is determined by labor law regulations. The employee (employee, civil servant ) has the right to inspect the personnel file ( Section 83 (1) BetrVG ). The right to inspect the personnel files relates to all documents that are available about the employee in the company and exists at any time, in particular within working hours . The personnel file also includes all other records and documents that relate to or are related to the employment relationship. This includes the personnel files stored separately special and auxiliary files, such as documents of the plant security . However, certain information may not be included in the personnel file. In particular, the employer may not keep lists of reasons for illness and keep them in the personnel file. The documents of a company doctor ( e.g. the report sheet ) do not belong in the personnel file because of the medical confidentiality . If the employer has made entries in the personnel file , the employee may, in accordance with Section 83 (2) BetrVG, request that a reply be made to the files. In the case of unauthorized entries (e.g. unfounded warnings , incorrect assessments ), the employee has a claim under §§ 12, 862 and 1004 Paragraph 1 BGB in conjunction with § 611 BGB and the employer's duty of care to remove the affected entry from the personnel file. According to this principle, the employer has to observe general personal rights with regard to reputation, social validity and professional advancement. In the event of an objectively illegal interference with his or her personal rights, the employee has the right to revoke or remove the impairment.

Personnel files are to be treated with strict confidentiality. If personal data is automated by at least ten employees or processed by at least twenty employees in any other form, the company must acc. 38 BDSG appoint a data protection officer. In § 26 BDSG is determined to what extent the collection, processing and use of personal data of employees for the purpose of employment is allowed. The basic principle is that the personal data must be required for the decision on the establishment of an employment relationship or, after the establishment of the employment relationship, for its implementation or termination. Employees also have a right to correction within the framework of the BDSG ( Section 58 (1) BDSG).

Content

The employer independently determines which documents and entries are included in the personnel file.

Recorded documents

Content can be, for example:

If the employer wants to include aptitude tests or graphic reports, this requires the express consent of the employee.

Remove documents

Documents about true facts are attached to the personnel file. Personnel files are a collection of documents and processes that relate to the personal and professional circumstances of an employee and are internally related to the employment relationship; they should give as complete, truthful and careful a picture of these relationships as possible. The employee's mere fear that a document could be detrimental to him is not enough to remove it. The employee has a claim if, for example, a warning is either indefinite in terms of content, contains incorrect factual assertions, is based on an incorrect legal assessment of the employee's behavior or violates the principle of proportionality, and also if, even in the case of a correctly issued warning, there is no protection worthy of protection The employer's interest in keeping them in the personnel file. Employees are entitled to have a warning letter removed from their personnel files if they have behaved impeccably within a certain period of time.

However, the employer can still have a legitimate interest in the further retention of a lawful warning if he would have to warn again in the event of a repeat, i.e. H. if he could no longer base a behavior-related termination on the warning. To this end, the Federal Labor Court (BAG) decided in July 2012 that the employee can only request the removal of a correctly issued warning from his personal file if the behavior complained of has become “meaningless in every respect” for the employment relationship. This is not automatically the case if the employer had to issue another warning because of the lapse of time in the case of repetition, because the original warning has lost its warning function. According to this ruling, the employer may also be allowed to keep justified warnings for a significantly longer period than just two or three years. The BAG does not specify the retention period for warnings, but makes the period dependent on the severity of a breach of duty in the individual case. The more serious a breach of duty weighs, the longer it can be important for assessing the leadership, performance and skills of the employee and, if necessary, for his or her trustworthiness. A violation of the regulations based on only minor negligence could lose its significance for the employment relationship much sooner.

In certain circumstances, complaints and warnings issued by the employer in writing may be contained in the personnel file for a longer period of time , as decided by the Frankfurt am Main labor court. It is assumed that there are no dishonorable complaints.

storage

The employer must protect the employee's personal rights and also ensure data protection ( see also: employee data protection ). In accordance with the Federal Data Protection Act, personal employee data must be secured against unauthorized access by third parties (employees, customers, etc.) using suitable means. Only those directly entrusted with the processing of these documents, as well as the employee's superiors, are to be given access to the personnel file, after appropriate safety instruction.

If it is necessary for organizational reasons to keep parts of the personnel file at different company locations, a corresponding reference must be made in the master file. Duplicating personnel files for this purpose is only permitted with prior approval by the employee or the works council .

In addition to the main file , there may be a so-called supplementary file (or special file ) in which very sensitive documents ( e.g. about illnesses, court judgments, operational integration management according to Section 167 (2) SGB ​​IX , etc.) are stored, if necessary in a sealed envelope. This ensures that such confidential information appears as rarely as possible during ongoing processing.

Inspection

The employee concerned has the right to unrestricted inspection of the records concerning him and can also request this inspection in the company of an external person (e.g. a lawyer or a competent relative) or together with the works council ( Sections 82 and 83 BetrVG ) . A severely handicapped person has the right to consult the severely handicapped representative when inspecting the personal file held about him or the data relating to him or her ( Section 178 (3) sentence 1 SGB IX). Since the entrepreneur can object to the making of copies, it can also be useful to use this person as a witness when making copies with a view to possible preservation of evidence . In the case of labor court disputes, the notes in question are often no longer in the original wording or not in full.

The right of inspection exists at any time during the duration of the employment relationship without any particular reason. For this purpose, the company can set consultation hours. Sometimes there are company agreements on this subject.

After the end of the employment relationship, the (former) employee also has a right of inspection. So far, however, it has been required that the employee must demonstrate (and, if necessary, also prove) a specific, legitimate interest in this post-contractual right of inspection. According to a new ruling by the Federal Labor Court , it is no longer necessary to demonstrate a specific legitimate interest. However, this new case law is criticized in the literature.

The file must be submitted in full. The previous removal of documents and their reinsertion after inspection by the employee would be incorrect behavior on the part of the employer.

Personnel files are confidential. Third parties are generally not allowed to inspect. The staff or works council or authorities also usually have no access.

Public service

The right to inspect the personal file for employees in the public sector in § 3 para. 5 collective agreement for public service (TVöD) and 6 § 3 para. Collective agreement for the public service of the countries included (TV-L).

The regulation that previously existed in accordance with Section 13 (2) of the Federal Employees' Collective Bargaining Agreement (BAT) stating that the employee must be heard before adding an incriminating process to the personnel file has not been adopted in the TVöD (for federal and local employees).

The regulation in the TV-L (state administration) and in the BAT-KF (church version) is different: the former BAT law has been adopted here: Before accepting complaints and allegations of a factual nature that are unfavorable or disadvantageous for them, the employees must can be heard. Your statements are to be recorded in the personnel file.

The legal basis of the personnel file law for civil servants is §§ 106 ff. Federal Civil Servants Act , § 50 Civil Servant Status Act and the corresponding provisions of the State Civil Servant Acts .

The legal basis of the personnel files law for soldiers and former soldiers are the § 29 Soldiers Act (SG) and § 24 Military Service Act (WPflG) and the corresponding central service regulations .

See also

literature

  • Dieter Bartosch: Digital Personnel File: Law - Organization - Technology. Data context. 1st edition 2007, ISBN 978-3895774157 .
  • Gisela Graz: Personal file and certificate. Weka. 1st edition 2004, ISBN 978-3827674111 .

Individual evidence

  1. ^ Federal Labor Court, judgment of May 7, 1980, reprinted in: Arbeit und Recht , 1981, 124
  2. ^ Federal Labor Court, judgment of August 5, 1992, Az: 5 AZR 531/91
  3. ^ Federal Labor Court, judgment of February 8, 1989, Az: 5 AZR 40/88
  4. ^ Federal Labor Court, judgment of August 12, 2010, Az: 2 AZR 593/09
  5. ^ Federal Labor Court, judgment of July 19, 2012, Az: 2 AZR 782/11
  6. ↑ ArbG Frankfurt, judgment of September 10, 2003, Az. 7 Ca 2899/03
  7. ↑ VNR: Admonitions and complaints remain in the personnel file , queried on July 13, 2009
  8. ↑ BAG, judgment of November 16, 2010 , Az. 9 AZR 573/09, full text = NJW 2011, 1306.
  9. ↑ cf. only the criticism of the above. Judgment in NJW-Spezial 07/2011, 210.