Surprise - Employers Face New Employee Personnel Records Obligations in 2013, But The Term "Personnel Records" Is Not Defined
California employers face a law (AB 2674) taking effect on January 1, 2013 (click here for a list of other new employment laws effective in 2013), which changes their duties to maintain and provide personnel records to current and former employees. The law amends Labor Code section 1198.5 pertaining to "personnel records". When discussing this new law, I am getting the question of what documents should be included in an employee’s personnel file, and what exactly are "personnel records" under this Labor Code provision. To many employers' surprise, although the term “personnel file” or “personnel records” is used throughout the Labor Code, the term is never explicitly defined.
The Labor Code provides some guidance for employers by setting for what employees are not entitled to inspect. Labor Code section 1198.5, which provides the employee with certain rights regarding inspection of “personnel records”, does exclude certain records from this right to inspection. Under this section, employees do not have the right to inspect (1) records relating to the investigation of a possible criminal offense; (2) letters of reference; (3) ratings, reports, or records that were: obtained prior to the employee’s employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination.
Without the terms “personnel records” or “personnel file” ever being defined, there is considerable ambiguity about what documents should be keep in an employee’s personnel file.
While not legally binding on employers, there is some guidance from the Division of Labor Standards Enforcement’s (“DLSE”) website (caution: at the time of this writing, the DLSE has not updated its website to reflect the new changes in the law):
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):
- Application for employment
- Payroll authorization form
- Notices of commendation, warning, discipline, and/or termination
- Notices of layoff, leave of absence, and vacation
- Notices of wage attachment or garnishment
- Education and training notices and records
- Performance appraisals/reviews
- Attendance records
It is important to keep in mind why an employer would ever have to produce a personnel file – to support its employment based decisions. Therefore, employers should typically maintain personnel files with the following documents:
- Signed arbitration agreements
- Sexual harassment compliance records for supervisors
- Sign acknowledgements of policy by employee (for example, confidentiality/proprietary information agreements, meal and rest break acknowledgments, handbook acknowledgments)
- Wage Theft Protection Act notice
- If commissioned employee, written commission agreement signed by both the employer and employee beginning January 1, 2013.
- Warnings and disciplinary action documents.
- Performance reviews
- Documents of any grievance concerning the employee
- Documents pertaining to when the employee was hired
- Records pertaining to last day of work and documenting reason for departure from employment
Employers typically should not keep the following information in an employee’s personal file:
- Form I-9s
- EEOC and DFEH charges of discrimination
- Workers’ compensation information
- Private medical information
- Any information obtained prior to offering the employee a position
Given the ambiguity about the definition of personnel file, employers should take time to consider their operations and industry to develop a system ensures the same documents for each employee are maintained in their personnel files, and what other files need to be established for employees. Also, employers need to design and implement a personnel file retention policy that will maintain the critical documents that would be relevant should the need to defend an employment claim arise. It is important that this process be established in order to survive any potential change in management and/or the human resource functions in the company.