What Makes California Employment Law Different ... and How to Deal With It. Records relating to the investigation of a possible criminal offense. The employer may take reasonable steps to verify the identity of a current or former employee or an authorized representative. Section 432 applies to any document that an employee (or job applicant) “signs” that is related to obtaining or holding employment. A former employee, or her attorney, sends you a letter demanding copies of the employee’s personnel file and pay records. Current through 2020 Legislative Session. However, many states do give employees such rights and spell out the terms under which employees are allowed to inspect those files. A record will be maintained of all individuals and agencies requesting information from personnel files. Employee's Right To Inspect Personnel Files in California Most companies maintain an employee file on each employee which contains various information as to the employee. That time period can be extended by five (5) days by mutual agreement. If this is your first visit, be sure to check out the FAQ by clicking the link above. How much of the file that an employee is allowed to view varies from state to state. added). 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. Section 1198.5 gives employees and former employees the right to inspect personnel records “related to the employee’s performance or to any grievance concerning the employee.” Code § 3306.5. A former employee may receive a copy by mail if he or she reimburses the employer for actual postal expenses. We aim to provide timely, topical information on the challenges that California employers face. These laws set forth new rules regarding itemized wage statements and personnel file inspection and copying, as well as the Wage Theft Prevention Act notice employers must provide to non-exempt employees. 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). An employee may also bring an action for injunctive relief to ensure compliance and recover costs and reasonable attorney’s fees. Since then, employers have seen more such requests, claims made before the Labor Commissioner, and even lawsuits over production of personnel files. As the statutes indicate, the answer is “no”— only documents that fall within the categories requested need to be produced. 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. To facilitate your inspection, your employer must do all of the following: Yes. Below is a summary of all three. Your employer may require that you inspect your personnel file on your own free time. A: Under the California Public Records Act, the exemption set forth in Government Code 6254(c) is specifically designed for “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” Gov’t Code § 6254(c) (emph. I understand the following: • If I am inspecting my personnel file, I may not add, remove or revise any documents. Since then, employers have seen more such requests, claims made before the Labor Commissioner, and even lawsuits over production of personnel files. No federal law grants employees the right to inspect their personnel files. This is specifically spelled out in California Labor Code Section 1198.5. You may inspect your personnel file/records at reasonable times and intervals. In the state of California, every current employee, or his or her representative has the right to inspect and receive a copy of their personnel records, maintained by their employer. If this is your first visit, be sure to check out the FAQ by clicking the link above. In the recent past, the state of California reviewed its legislation regarding the right to inspect personnel files. Labor Code § … Yes. California Labor Code Section §1198.5 controls the right of employee access to personnel files. 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. The employer must maintain accurate production records. A former employee may receive a copy by mail if he or she reimburses the employer for actual postal expenses. The employer shall make the contents of personnel records available for inspection to the current or former employee or their representative. Prior to making records available for inspection or providing a copy of those records, the employer may redact the name of any nonsupervisory employee. Section 3306.5 - Inspection of personnel files. You may schedule an inspection for any permits listed. To examine, inspect and/or copy any records reflecting my employment history, including records of my education, personnel history, supervisory or organizational … (a) Every current and former employee, or his or her representative, has 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. The following are some examples of "personnel records" (this list is not all inclusive): Yes. The Peculiar “Personnel-ity” of California Personnel File Inspection Laws. Click to share this page Click for PDF Click to print this page. About That Trade Secret Leak: It’s From Inside The Business! You may have to register before you can post: click the register link above to proceed. Existing law requires employers to permit employees to inspect, “within a reasonable time” after a request, their personnel (b) If, after inspection, a public safety officer believes that any portion of the material is mistakenly or unlawfully placed in the officer’s personnel records, the officer may request in writing that the mistaken or unlawful material be corrected or deleted. Although some statutes allow for an oral request for records,⁠1 putting your request in writing helps ensure that you have evidence of your request if you need to enforce your rights later. The California Division of Labor Standards Enforcement defines “reasonable times” as during the regular business hours of the office in which the records are maintained, or at any time during the employee’s regularly scheduled shift. The inclusion of this provision strongly suggests that Section 1198.5 is not a replacement for broad civil discovery. You should contact the Division of Labor Standards Enforcement (DLSE) and file a claim for a $750.00 penalty against your employer for failure to comply with Labor Code Section 1198.5. Maintain a copy of each employee’s personnel records for no less than 3 years. Upon a written request from a current or former employee, or a representative, the employer shall provide a copy of the personnel records, at a charge not to exceed the actual cost of reproduction, not less than 30 calendar days from the date the employer receives the request. Since then, employers have seen more such requests, … You may have to register before you can post: click the register link above to proceed. This article discusses the law in California as to what must be given to the employee to inspect upon request. OHR reserves the right to be physically present during the inspection of any records. added). education, personnel history, supervisory or organizational files relating to my application for employment. What Is This Letter and What Do I Do About It? The Department of Labor and Industry, through the Bureau of Labor Law Compliance, administers the Inspection of Employment Records Law (Act of 1978, No.286), which authorizes an employee to inspect certain information from their own personnel files maintained by an employer.. You must file a claim while you are employed or within a reasonable time after leaving employment. The proper response depends, first, on what the employee is asking to inspect. 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. Right to Inspect Personnel Files. As a result, responding to personnel file requests often requires a case-by-case approach. See below for details. So the overall scope of the statute still remains an open-ended question. In its first change to the state statute on inspection of personnel files since the law was enacted a dozen years ago, the California Legislature passed, and Governor Jerry Brown signed on September 30, a bill that significantly changes the rights of current and former California employees, and the obligations of employers, concerning employees' personnel files. The Peculiar “Personnel-ity” of California Personnel File Inspection Laws (Lexology) Posted on December 9, 2016 by Michelle Castro. Your company receives a letter from a former employee (or a lawyer) asking to inspect the personnel file or “employment records.” … Since then, employers have seen more such requests, claims made before the Labor Commissioner, and even lawsuits over production of personnel files. If the employee is required to inspect or receive a copy at a location other than the place where he or she reports to work, no loss of compensation to the employee is permitted, (3) make a former employee's personnel records available for inspection, and if requested by the employee or representative, provide a copy at the location where the employer stores the records, unless the parties mutually agree in writing to a different location. Employers are required to keep accurate payroll records on each employee, and such records must be made readily available for inspection by the employee upon reasonable request. California’s Labor Code does not specifically define the term “personnel records.” But an employee’s right to request items in a personnel file often include the right to examine the following: records relating to an employee’s employment history, an application for employment, More often than not, the call concerns a former employee, the request is from the employee’s attorney, and it is the precursor to a lawsuit. 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. A request for employee records should be in writing. But unlike Section 1198.5, there is no exception for pending litigation. Employees are also entitled to a statutory penalty of $750 AND an award of attorneys’ fees and costs for bringing the action. Labor Code § 1198.5 Governor Jerry Brown recently signed AB 1744, AB 2674, and SB 1255, all of which take effect on January 1, 2013. CALIFORNIA GOVERNMENT CODE. 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 … Gov. Published by Seyfarth Shaw LLP, this blog is for in-house attorneys, HR professionals, business owners, and managers who face real issues on a daily basis and need practical solutions to address them. 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. BUSINESS LITIGATION. 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. Code of Civil Procedure Section 1985.6(e), (Elevator, Ride & Tramway, Pressure Vessel), Permits, Registrations, Certifications, & Licenses, Worker Safety & Health in Wildfire Regions, Electronic Adjudication Management System, Commission on Health and Safety and Workers' Compensation (CHSWC), Labor Code Section 226, subdivisions (c) and (f), Code of Civil Procedure Section 1985.6(e), Locations, Contacts, and Hours of Operation, Licensing, registrations, certifications & permits. In signing below, I understand that the documents to be reviewed will contain information regarding my education and employment history and may include such items as payroll records, employment history, prior performance A California criminal cases, a pitchess motion is a defendant’s request to inspect a law enforcement officer’s personnel file for evidence of police misconduct.Defense attorneys typically bring a Pitchess motion as part of the pretrial process when they suspect officers may have acted improperly, such as filing a false police report us using excessive force. Employers are required to give an employee or job applicant, upon request, a copy of any instrument that the employee or applicant has signed relating to the obtaining or holding of employment. Collapse. A personnel record is a record that relates to performance and to an employee grievance. Please mail them to me at the below address within 21 days of your receipt of this letter: [address]. Employers often wonder if they have to produce “every” record about an employee in response to these requests. 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? More importantly, failure to comply with such a request is a misdemeanor. Employers are required by law in California to keep personnel files for every employee. "Employee" is construed to mean a person who is currently employed, one who is laid off with rights of reemployment, or a person on leave of absence. These laws set forth new rules regarding itemized wage statements and personnel file inspection and copying, as well as the Wage Theft Prevention Act notice employers must provide to non-exempt employees. We’ve focused on requests for copies of documents, but the same suggestions pertain to on-site inspections of files. To facilitate the inspection, employers shall do all of the following: (1) maintain a copy of each employee's personnel records for a period of not less than three years after termination of employment, (2) make a current employee's personnel records available for inspection, and if requested by the employee or representative, provide a copy at the place where the employee reports to work, or at another location agreeable to the employer and the requester. Labor Code 1198.5. Fortunately, this statute is simpler than the others. In its first change to the state statute on inspection of personnel files since the law was enacted a dozen years ago, the California Legislature passed, and Governor Jerry Brown signed on September 30, a bill that significantly changes the rights of current and former California employees, and the To start viewing messages, select the forum that you want to visit from the selection below. We offer here some tips on how to comply. If any information in the supervisor's file is to be used as the basis for a timely personnel action, it must be placed in the employee's official personnel file. This was particularly to allow the employees access to their records. Inspect my personnel file Obtain a copy of my personnel file . Indeed, personnel issues often implicate attorney-client privilege, attorney work-product, proprietary information, and privacy issues. This article discusses the law in California as to what must be given to the employee to inspect upon request. Although there is no specific definition for this phrase, the Division of Labor Standards Enforcement (DLSE) has opined that “reasonable times” is during the regular business hours of the office where personnel records are usually and ordinarily maintained. For the same reason, you should make sure that you have a copy of the request that you send. California employees have two personnel file rights: to request inspection and to receive a copy of records. I am a [former/current] employee of [Employer]. Make a current employee’s personnel records available, […] Cal/OSHA Approves Temporary COVID-19 Standard, Fall Into Handbook And Policy Update Season, ERISA & Employee Benefits Litigation Blog, Workplace Safety and Environmental Law Alert Blog. What happens if I forget to produce records in time? Notices of commendation, warning, discipline, and/or termination, Notices of layoff, leave of absence, and vacation, Notices of wage attachment or garnishment, Education and training notices and records. Employers must make the records available to the employee within twenty-one (21) days. This topic is closed. In California, three principal statutes govern employee requests to inspect personnel records—Labor Code §§ 1198.5, 226, and 432. See below for details. (a) Every employee has the right to inspect personnel records pursuant to Section 1198.5 of the Labor Code. It states that every employee has the right to inspect his or her personnel records relating … Yes. Division 4 - PUBLIC OFFICERS AND EMPLOYEES. Documents to be Provided to the Employee in California and When: 1. The Peculiar “Personnel-ity” of California Personnel File Inspection Laws. An employer is required to comply with only one request per year by a former employee to inspect or receive a copy of his or her personnel records. See below for details. Most companies maintain an employee file on each employee which contains various information as to the employee. In California, three principal statutes govern employee requests to inspect personnel records—Labor Code §§ 1198.5, 226, and 432. PLEASE SELECT ALL APPLICABLE PERMITS. Nevertheless, the statute excludes certain files. Upon written request, the employer must provide a copy of the personnel file, at a charge not to exceed the actual cost of reproduction, not later than 30 calendar days from the date the employer receives the request. Yes. The employer must make the employee’s personnel records available within 30 calendar days from the date the employer receives a written request for inspection. X. X. Unlike blogs that simply provide legal updates, this blog will have a running series of Workplace Solutions that will address evolving areas of interest, including California leaves of absence, recruiting and hiring, trade secrets, and the use of social media. Download PDF. How and when a California employer responds to these requests can have legal consequences. Employees may inspect those personnel file/records at “reasonable times and intervals.” To facilitate the, an employer must do the following: Maintain a copy of each employee’s personnel records for no less than 3 years. 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. STATE OF CALIFORNIA — HEALTH AND HUMAN SERVICES AGENCY. I understand the following: • If I am inspecting my personnel file, I may not add, remove or revise any documents. 4. Yes. 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. The employer is not required to make those personnel records or a copy available at a time when the employee is actually required to render a service to the employer. In the recent past, the state of California reviewed its legislation regarding the right to inspect personnel files. The Peculiar “Personnel-ity” of California Personnel File Inspection Laws. The right to inspect personnel files and records does not apply to records relating to the investigation of a possible criminal offense, letters of reference, or ratings, reports, or records that (a) were obtained prior to the employee’s employment, (b) were prepared by identifiable examination committee members, or (c) were obtained in connection with a promotional exam. Effective January 1, 2013, California law provides that current and former employees (or a representative) have the right to inspect and receive a copy of the personnel files and records that relate to the employee's performance or to any grievance concerning the employee. However, if you are required to travel to the location where the records are stored, the inspection must be during a time when you are required to render services to the employer, and you must be compensated for that time at your regular rate of  pay. 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? Former employees also have a right of inspection. Yikes! A: Under the California Public Records Act, the exemption set forth in Government Code 6254(c) is specifically designed for “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” Gov’t Code § 6254(c) (emph. Employers are required by law in California to keep personnel files for every employee. See below for details. Open Counter Hours are Monday – Friday 7:30 am to 12:30 pm unless otherwise noted . Personnel File Inspection. 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. Make a former employee’s personnel records available, and if requested by the employee or representative, provide a copy at the location where the employer stores the records, unless the parties mutually agree in writing to a different location. The proper response depends, first, on what the employee is asking to inspect. Violation of the statute is also a criminal infraction. California gives employees and former employees the right to inspect any personnel records relating to their performance or to any grievance concerning them. If the current or former employee files a lawsuit that “relates to a personnel matter against his or her employer or former employer” the right to inspect personnel records under Labor Code section 1198 ceases. Governor Jerry Brown recently signed AB 1744, AB 2674, and SB 1255, all of which take effect on January 1, 2013. 226 has remedies similar to those available under Section 1198 ( n ) (. 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