United States: The Peculiar "Personnel-ity" Of California Personnel File Inspection Laws

Seyfarth Synopsis: Within the last few years, the California Legislature has amended laws related to an employee's right to inspect personnel records, intending to ensure employees have access to those records. Since then, employers have seen more such requests, claims made before the Labor Commissioner, and even lawsuits over production of personnel files. We offer here some tips on how to comply.

What Is This Letter and What Do I Do About It?

Your company receives a letter from a former employee (or a lawyer) asking to inspect the personnel file or "employment records." What (if anything) should you do in response?

How and when a California employer responds to these requests can have legal consequences. That's right—employers can be sued (or even face criminal liability) over how they did, or did not, respond to personnel file requests.

The proper response depends, first, on what the employee is asking to inspect. In California, three principal statutes govern employee requests to inspect personnel records—Labor Code §§ 1198.5, 226, and 432. See below for details.

Labor Code § 1198.5

Section 1198.5 says that employees (and former employees) have the right to inspect personnel records maintained by the employer "related to the employee's performance or to any grievance concerning the employee." Employers must allow inspection or copying within thirty (30) days of the request, which can be made by the employee or their representative (often an attorney). That time period can be extended by five (5) days by mutual agreement.

Covered documents: Under the terms of the statute, it appears that documents such as performance reviews, commendation letters, disciplinary notices ("write-ups"), corrective action plans, and complaints about the employee would likely be covered.

The language in Section in 1198.5 is broad; it uses the terms "related to" and "concerning." As a result, determining exactly what other documents might be covered can be a challenge. But the Labor Commissioner has issued some guidance on its website on what might be included in a "personnel file," including, in addition to the above, things like an employment application, notices of leaves of absence or vacation, education and training notices, and attendance records. Unfortunately, there is no appellate case interpreting the scope of the current statutory language. So the overall scope of the statute still remains an open-ended question.

Nevertheless, the statute excludes certain files. For most employers, those files are (1) records about a criminal offense, (2) letters of reference, and (3) ratings, reports or records obtained before the employee's employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination. In addition, employers can redact the names of any non-supervisory employee mentioned in the requesting employee's file.

There are also situations when the statute does not apply. For example, if an employee (or former employee) files a lawsuit that "relates to a personnel matter" against the employer, then the right to inspect or copy the records ceases during the pendency of the lawsuit. The inclusion of this provision strongly suggests that Section 1198.5 is not a replacement for broad civil discovery.

What happens if I forget to produce records in time? If the employer does not permit the inspection or copying of these records in time, the employee may bring an action to obtain a court order (injunction) for the employer to comply with the statute. Employees are also entitled to a statutory penalty of $750 AND an award of attorneys' fees and costs for bringing the action. And failure to comply is a criminal infraction. Ouch!

Labor Code § 226

Section 226 requires California employers to furnish employees with itemized wage statements that show nine (9) specific categories of information, such as all hourly rates, hours worked, gross wages earned, etc. The employer must provide these wage statements at the time employees are paid or semi-monthly. The specific information required and the entire text of the statute can be found here.

Covered documents: The scope of this one is easier than Section 1198.5. In addition to requiring itemized wage statements, this section also requires the employer to produce those wage statements to employees on request or a computer-generated report that shows all nine (9) categories of information required. Employers must make the records available to the employee within twenty-one (21) days.

What happens if I forget to produce records in time? Section 226 has remedies similar to those available under Section 1198.5. Section 226 also authorizes the employee to sue for a court order requiring the employer to produce the information and also a penalty of $750, and employees can also recover attorneys' fees for bringing the lawsuit. Violation of the statute is also a criminal infraction. But unlike Section 1198.5, there is no exception for pending litigation. Yikes!

Labor Code § 432

Section 432 applies to any document that an employee (or job applicant) "signs" that is related to obtaining or holding employment. Upon request, the employer must provide those documents. Fortunately, this statute is simpler than the others. There is no timeline for production and there is no private right of action to enforce compliance.

But that does not mean that employers should ignore requests under this statute. As a practical matter, documents covered by this section can also be covered by Section 1198.5 (i.e., signed performance reviews or signed disciplinary write-ups). More importantly, failure to comply with such a request is a misdemeanor. And there is also no exception for pending litigation. Wow!

Covered documents: As mentioned, Section 432 covers any document the employee signed related to "obtaining" or "holding" employment. Examples include job applications, handbook acknowledgments, arbitration agreements, job descriptions, and any signed policy acknowledgments (anti-harassment, retaliation, discrimination, at-will employment, meal/rest break polices, etc.).

Workplace Solutions

Employers often wonder if they have to produce "every" record about an employee in response to these requests. As the statutes indicate, the answer is "no"— only documents that fall within the categories requested need to be produced. Employers must also remember to protect other important rights. Indeed, personnel issues often implicate attorney-client privilege, attorney work-product, proprietary information, and privacy issues. As a result, responding to personnel file requests often requires a case-by-case approach.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions