Personnel Files

Employers process a large amount of personal data relating to their employees. These data are often stored in a personnel file. Employers may only create a personnel file if this is required to perform an employment contract or effect an appointment as government official. In doing so, they should take into account the privacy of their employees.
The Personal Data Protection Act BES provides the conditions for creating personnel files.
Employers:

• are responsible for the accuracy and precision of the data in the personnel file;
• may not record more data in the personnel file than are necessary, and the data should be relevant;
• should inform employees of why they are collecting their data;
• should secure the personal data to prevent them from being lost or ending up in the wrong hands;
• may not keep the personal data for longer than necessary;
• should allow employees to inspect their data – this applies, in principle, to the entire personnel file – and to correct them if required

What data can my employer record in my personnel file?

The main rule is that your employer may only include in your personnel file data that are necessary for the purpose of the personnel file.

In your personnel file, your employer stores the data which he or she needs to perform the employment contract entered into with you. A good personnel file contains all current data that allow your employer to support any decisions he or she makes about you, such as a salary increase or dismissal.

Some data are needed for your employer to be able to meet statutory obligations, such as paying taxes and contributions. Other data are important for e.g. personnel policy.

Data your employer may record in your personnel file include the following:

• complaints;
• warnings;
• frequency of absenteeism (how often you do not show up for work);
• a copy of your ID;
• personal work notes of your supervisor.

In principle, your employer is not allowed to include medical data in your personnel file.

Reports of Assessment and Performance Interviews
Your employer has no need to include reports of assessment and performance interviews in your personnel file. These reports can be stored separately by your direct supervisor. Such reports serve a specific purpose and therefore are not automatically part of personnel records.

Is my employer allowed to include racial data in my personnel file?

Your employer may only include racial data in your personnel file if this is required to identify you or to apply a preferential policy (affirmative action).

Identification
Using your racial data may be inevitable to identify you, e.g. if your employer has a large number of employees and wants to establish their identities before they enter the premises.

In such case, your employer may provide all employees with photo access badges. Given that the photo on your access badge allows deducing your race, your photo can be considered racial information

 

Preferential Policy
If your employer wants to grant a preferential position to staff members from a specific ethnic or cultural minority group (affirmative action), your employer may need to include data about their or their (grand)parents’ countries of birth in their personnel files. This is only allowed if the persons in question have not objected to it in writing.

If you do not want your employer to record your racial data, you may file an objection at any time. You do not have to state any reason for the objection. When you file an objection, your employer must stop processing your racial data immediately.

A preferential policy is only allowed if certain people are demonstrably underprivileged. Also, your employer may pursue a preferential policy for a limited time only, until such policy is no longer necessary

Who has access to my personnel file?

Only persons such as your direct supervisor or Personnel Department officers have access to your personnel file, though only to the extent this is required to properly fulfill their duties. Likewise, they have an obligation to comply with the duty of confidentiality provided under the Personal Data Protection Act BES.

This duty of confidentiality means that any officers who have access to your personnel file have an obligation to keep secret your personal data included in that file. The only situations in which this does not apply is when they have a legal obligation to share information or when sharing information is necessary to fulfill their duties

 

Regulations on Access to Personnel Files
Some organizations have specific regulations on who can access personnel files. For example, such regulations may provide that only persons who have been (additionally) screened can access personnel files.

Is my employer allowed to digitalize my personnel file?

Yes, this is allowed. However, your employer may not destroy the original paper file until he or she has provided proper security for the digital file.

The Personal Data Protection Act BES provides security requirements for both digital and paper personnel files. For example, your employer must make sure that only a limited number of people have access to your personnel file.

Further, a digital file calls for different security measures than a paper file. An example are firewalls, which should be used as a security measure when the personnel information system is linked to the internet, e.g. when the possibility exists for employees to access their personnel files online.

What data can my employer use to determine my travel allowance?

To determine your travel allowance, your employer is not allowed to process more data than necessary. The only thing your employer needs is your home address.

Your employer is not allowed to inquire about e.g. the purchase or rental contract of your home. The reason is that this contract contains other (personal) information that is not required to determine your travel allowance. For this purpose, the only thing your employer needs to know is the home address from your personnel file or an extract from the population register stating your address

 

How long can my employer keep the data in my personnel file?

This depends on the type of data. Your employer has a legal obligation to retain certain data from your personnel file for a certain time. For example, data from the salary records that are relevant to tax calculation must be stored for seven years after the end of your employment. Wage tax statements must be retained by your employer for five years after the end of your employment.

For some data from your personnel file, the law provides no retention periods. These data are usually subject to a retention period of two years after termination of your employment. If the data become irrelevant before that, your employer should remove them immediately.

Examples of this type of data are reports of performance and assessment interviews, employment contracts and any amendments made to such contracts, correspondence about your appointment, promotion, demotion, or dismissal, certificates, and administrative data on absenteeism

 

Longer Retention
Your employer may retain data relating to you as (former) employee for longer if there is (or has been) a labor dispute with you or a pending lawsuit.

Is my employer allowed to transfer my personnel file to another organization?

This is allowed in the event of a bankruptcy, fusion, or takeover. However, to protect your privacy, your employer should comply with the following conditions:

• Your employer should announce the transfer, e.g. via the intranet or the staff magazine.
• Your employer may not provide more data than necessary to perform your employment contract or effect your appointment as a government official. Therefore, your employer should clean your personnel file by removing any data that are old and no longer relevant.
• You should be allowed to inspect your personnel file and have certain data removed, if necessary.

Can I inspect my personnel file and/or ask to correct or remove data?

Yes, you can. You have the right to inspect your personnel file. Likewise, you can make a request for data in your personnel file to be corrected or removed.

Where can I go if I have a complaint about my personnel file?

First of all, you should go to your employer. If your employer does not respond or you are unhappy with the response, you can address your complaint to your union.

Going to Court
You can also go to court, where you can invoke the rights conferred to you under the Personal Data Protection Act BES. For example, you can ask the judge to prohibit the processing of your personal data, ask for reparation for the (adverse) consequences, or claim damages.

Is a temporary employment agency allowed to ask for a copy of my ID when I register?

No, this is not allowed at the time of registration. Only later is the temporary employment agency allowed to ask for a copy of your ID and add it to your file.
This is the time you actually start working for the temporary employment agency. The agency then enters into an employment contract with you.
The temporary employment agency is allowed to verify your identity. Therefore, the agency is allowed to ask you to show your ID. For more information, see IDs.

If I call in sick, is the temporary employment agency allowed to ask what is wrong with me?

No, a temporary employment agency is not allowed to inquire about your health at the time of registration. Likewise, the agency is not allowed to inquire about your past illness-related absenteeism.

If I call in sick, is the temporary employment agency allowed to ask what is wrong with me?

No, this is not allowed. If you call in sick, the temporary employment agency is not allowed to ask about the exact nature and cause of your illness.

Your temporary employment agency is only allowed to ask when you expect to be back and what (other) work you are still able to do.

Is the temporary employment agency allowed to mention in my file that I wear a veil?

No, this is not allowed. The fact that you wear a veil reveals something about your religious beliefs. The temporary employment agency is not allowed to include this in your file.

Your religious beliefs constitute so-called special personal data, just like data about e.g. your race or health. These are sensitive data. Organizations are not allowed to use sensitive personal data, except when a legal exception applies.

Is the temporary employment agency allowed to screen me (or have me screened)?

Screening is only allowed if it is required for the job you will be doing as a temporary worker, e.g. when you will be working in childcare.

If the screening is necessary, the temporary employment agency must further comply with the following (statutory) conditions:

• During the screening, only data relating to you that are relevant to the job may be requested.
• The temporary employment agency should inform you of the screening.
• Your health should never be the object of screening, unless a medical examination is required for the job by law.

For more information, see Screening.

Is the temporary employment agency allowed to share criminal data obtained from the screening to the customer?

If the temporary employment agency has screened you on instructions from the employer you will be working for as a temporary worker and this screening has revealed criminal data (e.g. that you have a record), the temporary employment agency will only be allowed to share these data with the employer (the customer) if this is necessary.

Is my intermediary allowed to know that my salary has been garnished?

No, this is not allowed. Only the temporary employment agency’s payroll department is allowed to know this, but not your intermediary.

For how long is the temporary employment agency allowed to keep my data?

Temporary employment agencies must comply with the law when keeping data of temporary workers. Different laws, e.g. tax laws, provide different retention periods.

Your temporary employment agency may only keep your data if this is necessary, e.g. to comply with statutory retention requirements. If there is no (longer a) need to keep the data, the temporary employment agency should destroy your data.