Assembly Bill 2674 clarifies employer obligations under Labor Code Section 1198.5, which requires employers to allow an employee (or his/her representative) to inspect and receive a copy of their personnel records relating to (1) the employee's performance and (2) any grievance concerning the employee. The bill establishes a 30-day period by which employers must comply with an employee's request.
The bill clarifies that the section applies to both current and former employees. Employers are required to maintain personnel files for three years following an employee's termination from employment.
Employers will not be required to provide personnel records for access and inspection during a pending lawsuit filed by a current or former employee relating to a personnel matter. Further, where employees generally have the right to inspect records at the place where the employee works, a former employer that was terminated for a violation of law or policy involving harassment or workplace violence may be provided the records by mail or at a location other than the workplace that is a reasonable distance from the employee's home.
The bill also places some limits on the number and type of requests that can be made and the substance of what must be produced, including:
- employers must only comply with one request per year from a former employee;
- employers will not be obligated to comply with more than 50 requests under this section made by a representative or representatives of employees in one calendar month;
- a former employee has the option of receiving a copy by mail if they reimburse the employer for the actual postage expense;
- employers may redact the names of any non-supervisory employees contained in the personnel records prior to inspection or copying; and
- the section does not apply to records relating to an investigation of a criminal offense, letter of recommendation, pre-employment ratings or reports, and other ratings or reports prepared by identifiable examination committee members or in connection with a promotional examination.
Requests for records must be made in writing. On that note, the bill specifies that an employer-provided form must be made available to the employee (or his representative) upon verbal request.
This section does not apply to employees covered by valid collective bargaining agreements that meet certain criteria listed in the section.
The Bill establishes a $750 penalty for an employer's failure to comply. The changes to the Labor Code go into effect on January 1, 2013.