Can we withhold personnel file from a terminated employee? How about his last paycheck?

AuthorDelogu, Nancy
PositionThe Mailbag

Q A terminated employee sent us a written request to view his personnel file. Do we have to oblige? Also, the terminated employee has not returned his uniforms as asked. Can we then withhold his last paycheck?--Storme, Arkansas

  1. No federal law guarantees employees the right to view their personnel file, but some states do give workers that right. Arkansas law does not say employers have to share that info. (To find the laws on personnel-file access in all 50 states, go to

    Regarding the uniform question, you don't say what sort of uniform you provide for workers or what the employee has failed to return. But, generally speaking, any uniform that has your business logo or company name on the apparel is typically considered to benefit the employer, and not the employee. If that is the case, you cannot charge the employee for the cost of the uniform (See Arkansas Code 010-14-002 Ark. Code R. [section] 107).

    Even if you could charge for the uniform, you generally cannot deduct any costs for items not returned from an employee's pay unless you had a specific written agreement to do so. Also, such deductions can never reduce any workers' pay below the minimum wage.

    If employee works extra overtime hours, is he entitled to additional FMLA leave?

    Q If an employee must work mandatory overtime weekly, should that employee also be entitled to additional FMLA hours?--George, Indiana

  2. Maybe. The FMLA regulations say that covered workers are entitled to 12 weeks of unpaid leave in a covered year. For an employee who takes leave in one continuous block, there is no need to calculate hours. In that case, a workweek of 48 hours is simply that, a workweek.

    But if an employee takes intermittent or reduced-schedule leave, then the number of hours the individual is entitled to take off is still tied to the number of hours the individual is (or would be) scheduled to work in that week. When dealing with a reduced schedule or intermittent leave under the FMLA, an employer first should calculate how many hours of leave an employee is entitled to. My colleague Jeff Nowak, an FMLA expert based in Chicago, has explained it this way: "You make this calculation according to the employee's regular workweek. For example, an employee who regularly works a five-day workweek and eight hours a day, is...

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