A couple of recent questions led me to dig into the question whether Board members can review personnel files or not. I know many of you serve on non-profit Boards so I want to make sure this information gets out to everyone.
There isn’t a lot of regulations or case law on this issue. However, right now the courts are heavily favoring employee rights and their right to privacy.
Given my own research and discussion with a trusted employment law attorney, here’s the current best practices:
Consider: (i) whether the director has a legitimate purpose for the information, (ii) whether the director can fulfill his/her duties without inspecting the file, and (iii) the employee’s objections, if any.
Employees should be informed of the request and be able to opt out in whole or in part. If an employee has strong objections, it would be best to just pull the information that the Board member(s) are requesting, with personal information redacted, and request that the employee allow it to be included in the review.
However, if the employee refuses, the non-profit should honor that refusal. The employee’s right to privacy would most likely prevail in a court decision.