Happy Friday! This Friday’s Five provides five legal requests and/or notices that, if ignored, can create huge liability for a California employer.
1. Requests for personnel records and time records
There are many different Labor Code provisions that obligate the employer to provide current and former employees with a copy of their personnel files and/or payroll records. For example, Labor Code section 432 permits employees to obtain a copy of any document they signed, Labor Code section 1198.5 allows current and former employees to obtain copies of their personnel records, and Labor Code section 226(c) permits employees to inspect or copy payroll records within 21 days after making a request to do so.
2. PAGA notice
Employees seeking recovery under the Private Attorneys General Act (PAGA) must comply with requirements that place the Labor and Workforce Development Agency and the employer on notice that the employee will be seeking remedies under the Act and give the Agency a chance to investigate. If the Agency does not investigate, then the plaintiff can proceed with the claim. Employers have the the ability to cure some issues set forth in the plaintiff’s letter to the LWDA, which could bar the plaintiff from obtaining any penalties. Plus, the PAGA notice usually results in litigation being filed shortly after receiving the notice, so employers should begin discussing defense strategies as soon as it receives a PAGA notice.
3. Labor commissioner or DOL investigation notice
Under the Federal Labor Standards Act (FLSA), the Department of Labor (DOL) has certain permissions to investigate and gather date about wages, hours worked, and other working conditions at workplaces. The FLSA also provides the DOL limited permission to enter employers’ premises, review records, and even potentially question employees about employment practices. Under California law, the Labor Commissioner has subpoena power and the ability to review records and workplaces in order to enforce California employment laws. Upon receiving a request from any public agency, such as the DOL or the California Labor Commissioner, an employer should immediately review what obligations and rights it has in responding to the request.
4. Subpoenas from third parties
Employers may receive subpoenas from third parties seeking employment records. The “custodian of records” is responsible for responding to the requests and producing employment records in certain circumstances. California law requires that a request for a personnel file include a “Notice to Consumer” notifying the employee that such records are being sought, and providing the individual an opportunity to object to the disclosure of the information. If the employee or former employee has not been notified, or objects to the production of the requested records, the employer should not produce the information requested unless and until a court orders otherwise, or the affected employee agrees to the production. If the subpoena seeks the disclosure of confidential or proprietary information, the employer should contact an attorney to see if the company has an obligation to move to quash the subpoena or seek an appropriate protective order to preserve the confidentiality of the information sought.
Employers should not produce requested documents without being satisfied that the proper subpoena procedures and notice requirements, if applicable, have been met. Employers have a duty to maintain the privacy rights of current and former employees, which includes personnel files.
5. Service of a Complaint
Ultimately, once a lawsuit is initiated, Plaintiffs will serve the complaint on the registered agent of the company. Generally speaking, defendants have 30 days to respond to a complaint once served. It is important to immediately begin assessing the company’s rights and obligations once a complaint has been served in order to ensure its rights are protected. If a company does not timely respond to a lawsuit, entry of default judgment could be entered against the company, which could result in providing the plaintiff a judgment in the full amount of damages sought.