It’s time again for one quick action item you can accomplish to make your business safer than it was yesterday. Today, we are tackling personnel files. Specifically, we are going to address requests by employees—or, more worrisome, the employee’s attorney—to inspect or receive a copy of the personnel file.
Our goal today is to save you $750 plus attorney’s fees, which represents the liability you potentially face for not timely responding to a personnel records request.
Labor Code section 1198.5 entitles “current and former employees, or his or her representative, the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee.” Employers must provide the personnel records within 30 days from the date the employer receives the request.
Frequently, these requests will come from a plaintiff’s attorney. It is potentially the first hint that you may be facing an employment lawsuit in the near future. The plaintiff’s attorney has two primary goals with this request.
First, the attorney may want to see the personnel records to evaluate whether to take the employee’s case.
Second, the attorney is hoping that you will blow that 30-day deadline. The penalty for doing so is $750, and the employee can also recover costs and reasonable attorney’s fees to enforce this right. (These requests will typically also request payroll records under Labor Code section 226, which comes with a separate $750 penalty for non-compliance. In that sense, we’re saving you $1,500 today.)
As if the $750 haircut weren’t bad enough, missing this deadline signals to the plaintiff’s counsel that your company is disorganized, dramatically increasing the likelihood the attorney will take the case.
Thirty days may seem like a long time, but if you are an employer with multiple locations, the request may take days or weeks to filter to the appropriate person (or get ignored entirely by someone unfamiliar with the law). Moreover, because that these requests often are a prelude to a lawsuit, you will want to give serious thought (and legal advice) on what to produce.
So today, you are going to develop and implement a written policy that designates a person or position (maybe you, maybe Human Resources, or maybe the general counsel) to receive these written requests. Subsection (f) of section 1198.5 permits the employer to “designate the person to whom a request is made.”
The designated person or position should be familiar with the requirements of section 1198.5 and have authority to act quickly, either to respond to the request directly or to engage legal counsel. With this policy in place, you can avoid delays in acting on a request, put your best foot forward in response, and keep that $750.
Congrats, you took a concrete step today to protect your business. See you next week.