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Personnel files and records

    

Effective January 1, 2013, California law provides that current and former employees (or a representative) have the right to inspect and receive a copy of the personnel files and records that relate to the employee’s performance or to any grievance concerning the employee. Labor Code Section 1198.5 Inspections must be allowed at reasonable times and intervals, but not later than 30 calendar days from the date the employer receives a written request. Upon a written request from a current or former employee, or a representative, the employer shall provide a copy of the personnel records, at a charge not to exceed the actual cost of reproduction, not less than 30 calendar days from the date the employer receives the request.

To facilitate the inspection, employers shall do all of the following: (1) maintain a copy of each employee’s personnel records for a period of not less than three years after termination of employment, (2) make a current employee’s personnel records available for inspection, and if requested by the employee or representative, provide a copy at the place where the employee reports to work, or at another location agreeable to the employer and the requester. If the employee is required to inspect or receive a copy at a location other than the place where he or she reports to work, no loss of compensation to the employee is permitted, (3) make a former employee’s personnel records available for inspection, and if requested by the employee or representative, provide a copy at the location where the employer stores the records, unless the parties mutually agree in writing to a different location.

The employer is not required to make those personnel records or a copy available at a time when the employee is actually required to render service to the employer, if the requester is the employee.  An employer is required to comply with only one request per year by a former employee to inspect or receive a copy of his or her personnel records.  A former employee may receive a copy by mail if he or she reimburses the employer for actual postal expenses.  An employer is not required to comply with more than 50 requests to inspect and receive a copy of personnel records filed by a representative or representatives of employees in one calendar month.  The employer may take reasonable steps to verify the identity of a current or former employee or an authorized representative.  Prior to making records available for inspection or providing a copy of those records, the employer may redact the name of any nonsupervisory employee.

If a former employee seeking to inspect his or her personnel records was terminated for a violation of law, or an employment-related policy, involving harassment or workplace violence, the employer may comply with the request by doing one of the following: (1) making the personnel records available to the former employee for inspection at a location other than the workplace that is within a reasonable driving distance of the former employee’s residence, (2) providing a copy of the personnel records by mail.

If an employer fails to permit a current employee, former employee, or representative to inspect or copy personnel records within the times specified, or times agreed to by mutual agreement , the current employee, former employee, or the Labor Commissioner may recover a penalty of $750.00 from the employer.  A current or former employee may also bring an action for injunctive relief to obtain compliance, and may recover costs and reasonable attorney’s fees in such an action through the court process.

The right to inspect personnel files and records does not apply to records relating to the investigation of a possible criminal offense, letters of reference, or ratings, reports, or records that (a) were obtained prior to the employee’s employment, (b) were prepared by identifiable examination committee members, or (c) were obtained in connection with a promotional exam.

The right to inspect personnel files does not apply to an employee covered by a valid collective bargaining agreement if the agreement expressly provides for all of the following: (1) the wages, hours of work, and working conditions of employees, (2) a procedure for the inspection and copying of personnel records, (3) premium wage rates for all overtime hours worked, (4) a regular rate of pay of not less than 30 percent more than the state minimum wage rate.

Employers are required to give an employee or job applicant, upon request, a copy of any instrument that the employee or applicant has signed relating to the obtaining or holding of employment. Labor Code Section 432

Employers are required to permit current and former employees to inspect or copy payroll records pertaining to that current or former employee. Labor Code Section 226(b) An employer who receives a written or oral request from a current or former employee to inspect or copy his or her payroll records shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request. Failure by an employer to permit a current or former employee to inspect or copy his or her payroll records within the 21 calendar day period entitles the current or former employee to recover a penalty from the employer in a civil action before a court of competent jurisdiction. Labor Code Section 226, subdivisions (c) and (f)

Employers are required to keep accurate payroll records on each employee, and such records must be made readily available for inspection by the employee upon reasonable request. Additionally, when a piece rate or incentive plan, such as a commission plan, is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. The employer must maintain accurate production records. IWC Orders 1 through 15, Section 7, and IWC Order 16, Section 6,

All employers must provide employees or their representative(s) access to accurate records of employee exposure to potentially toxic materials or harmful physical agents. Labor Code Section 6408(d)

Employment records may be subpoenaed from a current or former employer by a third party. If employment records are subpoenaed, the employee must be notified and has the right to object to production of the records. Code of Civil Procedure Section 1985.6(e)

 

1.Q.Do I have right to inspect my personnel file?

A.Yes.  You may inspect your personnel file/records at reasonable times and intervals. To facilitate your inspection, your employer must do all of the following:
  1. Maintain a copy of each employee’s personnel records for no less than 3 years.
  2. Make a current employee’s personnel records available, and if requested by the employee or representative, provide a copy at the place where the employee reports to work or at another location agreeable to the employer and the requester.
  3. Make a former employee’s personnel records available, and if requested by the employee or representative, provide a copy at the location where the employer stores the records, unless the parties mutually agree in writing to a different location.
2.Q.I am on a leave of absence. Do I still have the right to inspect my personnel file?

A.Yes. "Employee" is construed to mean a person who is currently employed, one who is laid off with rights of reemployment, or a person on leave of absence.

3.Q.I am a former employee who quit my job. Do I still have the right to inspect my personnel file maintained by my former employer?

A.Yes. Former employees also have a right of inspection.

4.Q.What does "at reasonable times and intervals" mean?

A. Although there is no specific definition for this phrase, the Division of Labor Standards Enforcement (DLSE) has opined that “reasonable times” is during the regular business hours of the office where personnel records are usually and ordinarily maintained.  The employer is not required to make those personnel records or a copy available at a time when the employee is actually required to render a service to the employer.  DLSE has further declared that its enforcement policy considers “reasonable intervals” to be once every year, unless there is reasonable cause to believe that the file has been altered in a manner that might adversely affect the interests of the employee, or the file contains information that is pertinent to an ongoing investigation affecting the employee, in which case more frequent inspections would be considered “reasonable”.

5.Q.Do I need to put my request to inspect my personnel file in writing?

A. Yes.  The employer must make the employee’s personnel records available within 30 calendar days from the date the employer receives a written request for inspection.

6.Q.Am I entitled to see everything in my personnel file?

A. No. By law, the right to inspect does not apply to:
  1. Records relating to the investigation of a possible criminal offense.
  2. Letters of reference.
  3. Ratings, reports, or records that were:

      a. Obtained prior to your employment,
      b. Prepared by identifiable examination committee members, or
      c. Obtained in connection with a promotional examination.
7.Q.What types of records in my personnel file am I entitled to see?

A. Categories of records that are generally considered to be "personnel records" are those that are used or have been used to determine an employee’s qualifications for promotion, additional compensation, or disciplinary action, including termination. The following are some examples of "personnel records" (this list is not all inclusive):
  1. Application for employment
  2. Payroll authorization form
  3. Notices of commendation, warning, discipline, and/or termination
  4. Notices of layoff, leave of absence, and vacation
  5. Notices of wage attachment or garnishment
  6. Education and training notices and records
  7. Performance appraisals/reviews
  8. Attendance records
8.Q.Is my employer required to give me a copy of my personnel file?

A. Yes.  Upon written request, the employer must provide a copy of the personnel file, at a charge not to exceed the actual cost of reproduction, not later than 30 calendar days from the date the employer receives the request.  A former employee may receive a copy by mail if he or she reimburses the employer for actual postal expenses.

9.Q.Can my employer require that I inspect my personnel file on my own time?

A. Yes.  Your employer may require that you inspect your personnel file on your own free time.  However, if you are required to travel to the location where the records are stored, the inspection must be during a time when you are required to render services to the employer, and you must be compensated for that time at your regular rate of  pay.

10.Q.If I make a request of my employer pursuant to Labor Code Section 1198.5 to inspect my personnel file and my employer denies such request, what can I do?

A. You should contact the Division of Labor Standards Enforcement (DLSE) and file a claim for a $750.00 penalty against your employer for failure to comply with Labor Code Section 1198.5.  DLSE will enforce the right to inspect and copy personnel records under the law.  An employee may also bring an action for injunctive relief to ensure compliance and recover costs and reasonable attorney’s fees.  Again, this is within the court system not DLSE.