• Employee Access to Personnel File Under New California Law - What All Employers Should Know
  • May 1, 2013
  • Law Firm: Vandeventer Black LLP - Pasadena Office
  • At one point or another every employer will be faced with a request from a current or former employee to inspect or copy his or her personnel records. Upon request, the employer typically has two questions: 1) What are the employee’s rights when it comes to their personnel file? and 2) What should be included in an employee’s personnel file?

    Employees’ Inspection Rights

    Effective January 1, 2013, AB 2674 amends California Labor Code § 1198.5 and expands the standards for an employee’s inspection and copy of personnel records and creates employer penalties.

    California law requires that employers allow current and former employees, or his or her representative, to inspect and receive a copy of their personnel records.

    Inspections must be allowed at reasonable times and intervals. Under the new law, an employer is to permit inspection no later than 30 days after receiving a written request (unless mutually extended to 35 days from the original request). Upon a current or former employee’s written request, the employer shall also provide copies of these records at a charge not to exceed the actual cost of reproduction within these same time frames. For former employees, the employer may mail a copy of the records if the employee reimburses the employer for actual postal expenses.

    The employee’s request shall be made either in writing or by completing an employer-provided form. Thus, the statute requires employers to develop a form that shall be made available upon verbal request to the employee’s supervisor or employer’s representative.

    Current employees will generally be permitted to inspect records where the employee works, or at another location agreeable to the employer and employee. However, if the employee is required to inspect records other than the place where he or she works, no loss of compensation to the employee is permitted. Former employees may inspect records at the location where the records are stored. Employers are required to maintain personnel records for a period of not less than three years after termination of employment.

    The statute provides alternative inspection and copying mechanisms involving former employees terminated for violations of law, or an employment-related policy involving harassment or workplace violence. In such a case, the employer complies with the request by either making the records available for inspection at a location other than the workplace that is within reasonable driving distance of the former employee’s residence or mailing a copy of the records to the former employee.

    In addition, inspection rights would cease during the pendency of any litigation by a current or former employee relating to a personnel matter. A lawsuit is deemed to “relate to a personnel matter” if the employee’s personnel records are “relevant to the lawsuit.”

    As to former employees, an employer is only required to comply with one request per year to inspect or copy their personnel records. Employers will also not be required to comply with more than 50 requests in one calendar month for inspection or copying made by a representative or representative employee.

    Employee rights under Labor Code § 1198.5 do not apply to:

    • Records relating to the investigation of a possible criminal offense;

    • Letters of reference;

    • Ratings, reports, or records that were (i) obtained prior to the employee’s employment; (ii) prepared by “identifiable examination committee members,” or (iii) obtained in connection with a promotional examination;

    • Employees subject to the Public Safety Officers Procedural Bill of Rights (Gov. Code section 3300 et seq.); and

    • Employees of agencies subject to the Information Practices Act of 1977 (Civ. Code section 1798 et seq.).

    Nor does the statute apply to employees covered by a collective bargaining agreement if the agreement expressly provides for all of the following:

    • Wages, hours or work and working conditions of employees;

    • A procedure for the inspection and copying of personnel records;

    • Premium wage rates for all overtime hours worked; and

    • A regular rate of pay of not less than 30 percent more than the state minimum wage rate.

    The statute provides that a current or former employee or the Labor Commissioner may recover a penalty of $750 and attorneys’ fees, as well as injunctive relief for employer non-compliance.

    An employer may assert “impossibility of performance” as an affirmative defense in any action alleging a violation of § 1198.5.

    Contents of a Personnel File

    Amended section 1198.5 does not define personnel file, nor indicate what should or should not be included within it. Section 1198.5 provides two categories of personnel records maintained by an employer must be produced for inspection or copying: (1) those “relating to the employee’s performance,” and (2) those relating to “any grievance concerning the employee.”

    Thus, a personnel file should include such things as the offer letter of employment or employment agreement, employment application and resume, IRS Form W-4, any forms relating to employee benefits, employee’s acknowledgments of receipt of the Employee Handbook, and/or any key employee policies such as an anti-harassment policy, emergency contacts, promotions, performance reviews, attendance records, warnings and/or other disciplinary memos, letter of resignation or discharge.

    The personnel file should not contain any criminal background check information, confidential information obtained during a background or reference check, letters of reference, confidential medical information (i.e., disability), payroll information, USCI Form I-9, records relating to an investigation of a possible criminal offense or internal investigation of workplace misconduct, i.e., harassment, discrimination, etc., EEOC or DFEH complaints or charges, workers’ compensation materials.