1. Current and former employees have the right to inspect or copy personnel files.
Under Labor Code section 1198.5 employees have the right to inspect or receive copies of personnel files and records relating to the employee’s performance or grievance concerning the employee. Employers are legally required to maintain personnel files for at least three years after the employee stops working for the employer. However, since the statute of limitations for wage and hour claims can extend back four years, many employers keep the files at least four years.
2. The terms “personnel file” or “personnel records” are not defined in the Labor Code.
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(“DLSE”) expressing the following view:
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
Employers should also consider placing the following documents in personnel files:
- 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
3. Personnel records must be made available not less than 30 days from date employer receives a written request to view the file.
The employer may charge the employee for the costs of copying the file, but the charge cannot exceed actual cost of reproduction.
4. Employers have the right to redact the names of any other nonsupervisory employee that are listed in the employee’s personnel file before making it available to the employee.
5. Employers may be subject to a $750 penalty for not making requested records available.
The penalty can be assessed by the Labor Commissioner, and the employee could also bring an action to compel production of his or her file and recover attorney’s fees.