by Sayema Hameed
As of January 1, 2013, California Labor Code Section 1198.5 has been amended to give employees new rights to access their personnel files. The amended statute explicitly gives former employees the same right as current employees to inspect and obtain a copy of their personnel records. In addition, the current or former employee can authorize in writing a representative to inspect or receive a copy of the employee’s personnel file.
Read on to learn what you need to know about employer rights and responsibilities under this statute.
Photo Credit: Pixabay
Employer Obligations Under Labor Code Section 1198.5
Section 1198.5 requires an employer to maintain a copy of each employee’s personnel file for at least three (3) years after termination of employment.
Employers must also allow current or former employees to inspect or obtain a copy of their personnel files within thirty (30) days of a written request.
Upon verbal request by an employee or representative, an employer must also provide a written form to the employee or representative for the purpose of requesting access to the personnel records.
If an employer requires a current employee to inspect or receive a copy of the personnel records at a location other than the employee’s workplace, then no loss of compensation to the employee is permitted for the time spent.
If an employer violates Section 1198.5, a current or former employee or the Labor Commissioner can now recover a penalty of $750 from the employer, along with injunctive relief and attorney’s fees. A violation of this section is considered an infraction (a lesser offense than its previous designation as a misdemeanor).
Employer Rights Under Labor Code Section 1198.5
An employer may designate a person within the company to handle requests for inspection of personnel files.
An employer may take reasonable steps to verify the identity of a current or former employee or his or her authorized representative before providing access to the personnel records.
An employer may redact the names of any nonsupervisory employees contained in the personnel files prior to inspection or copying.
An employer is not required to comply with more than fifty (50) requests for a copy of employee personnel records by a representative of the employees in one calendar month.
In addition, Section 1198.5 does not apply to an employee covered by a valid collective bargaining agreement that provides a procedure for inspection and copying of personnel files.
An employer is only required to comply with one personnel records request per year by a former employee.
If a former employee seeking to inspect his or her personnel file was terminated for violation of a law or policy involving harassment or workplace violence, the employer is not required to allow the former employee back into the workplace. Instead, the employer may make the former employee’s personnel file available for inspection at another location within reasonable driving distance from the former employee’s residence, or provide a copy by mail.
Exceptions to Labor Code Section 1198.5
If an employee or former employee files a lawsuit against the employer in which his or her personnel files are relevant, that employee’s right to inspect or copy personnel records under Section 1198.5 ceases while the lawsuit is pending.
The requirements of this statute also do not apply to:
• Letters of reference
• Records obtained before the employee’s employment
• Records obtained in connection with a promotional examination or prepared by an identifiable examination committee
• Employees who are subject to the Public Safety Officers Procedural Bill of Rights (Government Code Section 3300 et seq.)
• Employees of agencies subject to the Information Practices Act of 1977 (Civil Code Section 1798 et seq.)
Employer Obligations Under Labor Code Section 432
In addition to the requirements of Section 1198.5, Labor Code Section 432 requires employers, upon request, to give an employee or job applicant a copy of any instrument that the employee or applicant has signed relating to the obtaining or holding of employment.
Employer Obligations Under Labor Code Section 226(b) and (c)
In addition, Labor Code Sections 226(b) and (c) require employers to permit current and former employees to inspect or copy their payroll records no later than 21 calendar days from the date of the current or former employee’s request. A failure by the employer to comply with this provision entitles the current or former employee to recover a $750 penalty from the employer.
Employers should establish clear procedures to comply with Sections 1198.5, 432 and 226 and should train their managers on its procedures to handle employee requests for access to personnel files. Specifically, employers must do one of the following: (1) keep a copy of each employee’s personnel records at the place where the employee reports to work; (2) make the personnel records available at the place where the employee reports to work within a reasonable amount of time following the employee’s request (no later than 21 days for payroll records); or (3) permit the employee to inspect the records at the location where they are stored with no loss of compensation to the employee.
Employers should also update their employee handbooks regarding personnel files and should prepare a written form that employees can use to request their personnel records. If an employer designates one person to be in charge of personnel records, the employer should notify its employees of that person’s designation and properly train that person on the employer’s rights and responsibilities under Sections 1198.5, 432 and 226.