Your Company received a letter from an attorney representing one of your current/former employees requesting a copy of his personnel file. What are you required to provide?
In California, three principal laws govern employee requests to inspect personnel records—California Labor Code §§ 1198.5, 226, and 432.
Under Labor Code § 1198.5, 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.
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 Labor Code § 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.
However, the statute excludes files that 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 Labor Code §1198.5 is not a replacement for broad civil discovery.
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. In addition, failure to comply is a criminal infraction. Further discussion of the other statutory provisions requesting copies of signed documents and payroll records can be found in other FAQ’s.
For more information on when a CA Company is required to provide personnel files, contact Lisa Sherman at (424) 249-3631 or [email protected] for a free consultation.