Personnel files and records

    

California law requires that employers allow employees and former employees access to their 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. To facilitate the inspection, employers must do one of the following: (1) keep a copy of each employee’s personnel records at the place where the employee reports to work, (2) make the personnel records available at the place where the employee reports to work within a reasonable amount of time following the employee’s request, or (3) permit the employee to inspect the records at the location where they are stored with no loss of compensation to the employee.

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.

Employees of state agencies, with few exceptions, and public safety officers are exempt from the provisions of Labor Code Section 1198.5.  However, other public employees are covered under Labor Code Section 1198.5, including, those of a city, county, special district, community redevelopment agency, or other political subdivision of the state.

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) Effective January 1, 2003, 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. A failure by an employer to permit a current or former employee to inspect or copy his or her payroll records within the aforementioned 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 one of the following:

  1. Keep a copy of your personnel records at the place where you report to work,
  2. Make your personnel records available to you at the place where you report to work within a reasonable period time following your request to inspect such records, or
  3. Allow you to inspect your personnel records at the location where they are stored, with no loss of compensation to you.
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 the right of inspection until the statute or limitations on any claims they may have against their former employer expire.

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 or at anytime during the employee’s regularly scheduled work shift, with sufficient time being available to permit the employee an ample opportunity to conduct a thorough inspection. The inspection time must be commensurate with the volume and content of the file, as arbitrary time limits that do not allow for a sufficient review are not within the spirit of the law. 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.No. Your request may be either oral or written, or on a form provided by your employer. Information requested on such a form must be solely for the purpose of identifying the requesting employee so as to avoid disclosure to ineligible individuals.

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:
    1. Obtained prior to your employment,
    2. Prepared by identifiable examination committee members, or
    3. 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.No. Your employer is not required to provide you with a copy of your entire personnel file. However, the law does require that upon request you be given a copy of any instrument you signed relating to the obtaining or holding of employment. Additionally, the taking of notes regarding any document in your personnel file is permitted.

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

A.Yes, your employer can 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 a request, what can I do?

A.Initially, you should contact the Division of Labor Standards Enforcement and explain that pursuant to the right granted you under Labor Code Section 1198.5 you requested to inspect your personnel file and your employer is refusing to allow you to inspect such file.  DLSE will assist you by explaining the law to your employer. An employer who violates, refuses, or neglects to comply with an employee’s right of inspection is guilty of a misdemeanor. Labor Code Section 1199(c) DLSE has no authority to attempt remedial action against the employer if it violates, refuses or neglects to comply with your right of inspection, and you must avail yourself of appropriate civil remedies, such as a grievance procedure, civil action, etc.