Employers need to be aware of the requirements and tight deadlines they have in responding to an employee’s request for various employment documents under California law. This Friday’s Five focuses on five areas of records that are typically requested by applicants, current or former employees, and some common deadlines to comply with those requests.
1. Current and former employees have a right to their personnel records under Labor Code section 1198.5.
Under California Labor Code section 1198.5(a) provides that every current and former employee, or their representative, has the right to inspect and receive a copy of their personnel records. In terms of requests pursuant to 1198.5, the request must be made in writing through two methods:
- Written and submitted by the current or former employee or his or her representative.
- Written and submitted by the current or former employee or his or her representative by completing an employer-provided form.
Employers must comply with the request no later than 30 calendar days from receipt of the written request. Labor Code section 1198.5(b)(1).
2. The terms “personnel records” or “personnel file” are not defined in the Labor Code.
Because Labor Code section 1198.5 refers to the terms “personnel records”, but never defines the term, there is considerable ambiguity about what documents should be keep in an employee’s personnel file and what documents must be made available upon a request to inspect or copy the personnel records. 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):
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
However, Labor Code section 1198.5(h) clearly sets forth that this section 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: obtained prior to the employee’s employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination. In addition, employers may redact the names of “any nonsupervisory employee” contained in the personnel file being requested. Labor Code section 1198.5(g).
Labor Code section 1198.5 provides that employers must keep a copy of the employee’s personnel records for three years after the employee has left the company. Labor Code section 1198.5(c)(1).
3. The right to inspect a personnel file under section 1198.5 stops once a lawsuit is filed.
If the current or former employee files a lawsuit that “relates to a personnel matter against his or her employer or former employer” the right to inspect personnel records under Labor Code section 1198 ceases. Labor Code section 1198(n) and (o).
4. Labor Code section 432 provides applicants and employees with a right to a copy of any document he or she signed.
An employee or applicant is entitled to receive any document relating to the “obtaining or holding of employment.” The employee or applicant must be provided the document “upon request.” Labor Code section 432.
5. Employers have 21 days to provide payroll information required under Labor Code section 226.
Employers are required to provide employees with itemized wage statements or pay stubs that lists various items. I’ve written about the requirements of what must be on wages statements previously here, and the DLSE provides examples of compliance pay stubs on its website for hourly employees here and for employees paid by piece rate here.
Under Labor Code section 226(c), employers have 21 calendar days to respond to written or oral requests to inspect or copy the records covered by this section. Under this Labor Code section, employers can take reasonable steps to ensure the identify of a current or former employee, and the actual costs of reproduction can be charged by the employer.
A request for personnel records and payroll records cannot be taken lightly by employers, and failure to comply with the various requirements can expose employers to liability. It is important to seek legal counsel immediately once an employee or their representative makes a verbal or written request for employment related documents or ensure compliance with the request. It is also a key time period to evaluate whether the employee may file litigation, and to take steps to resolve any potential issues prior to litigation, if at all possible.