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.).
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.
If you would like assistance in ensuring your company’s compliance with a personnel file request, or if you have any questions raised in this post, then please do not hesitate to contact the author or any other member of Seyfarth’s Labor and Employment Group.
Edited by Coby M. Turner.