The following are some examples of "personnel records" (this list is not all inclusive): Yes. You may want to inspect your personnel file for multiple reasons. 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. Make a current employee’s personnel records available, […] How much of the file that an employee is allowed to view varies from state to state. • Names of non-supervisory employees and other privileged and/or private, third party information will be removed from the records prior to my inspection and/or Click to share this page Click for PDF Click to print this page. When the files have met their 3 year retention requirement, follow the NMSU Disposition and Destruction Process; If there are evaluations (in the case of faculty) in the departmental file,. 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. The Not-So-Wild West: Practical Tips for California Investigations, A Rock and a Hard Place: Keeping a Lid On Internal Workplace Investigations, There’s An App For That: Considerations in Employee GPS Monitoring, Updates in the Complicated World of Employee Privacy, San Francisco’s 10-Day Travel Quarantine Order Tells Holiday Travelers to Stay Home, Though Santa Likely Excepted, Cal/OSHA Approves Emergency Temporary COVID-19 Standard, Asked and Answered: Updates on California’s Pay Data Reporting Law, Not So Happy Thanksgiving? The employer may take reasonable steps to verify the identity of a current or former employee or an authorized representative. Right to Inspect Personnel Files. The employer must maintain accurate production records. 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. What happens if I forget to produce records in time? Since then, employers have seen more such requests, claims made before the Labor Commissioner, and even lawsuits over production of personnel files. 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. There are three principal statutes that govern current and former employees’ requests to view or receive a copy of their personnel file. 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. Labor Code Section 1198.5 Inspections must be allowed at reasonable times and intervals, but not later than 30 calendar days from the date the employer receives a written request. Why You May Want to Inspect Your Personnel File. 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. We offer here some tips on how to comply. Employers must also remember to protect other important rights. PERSONNEL REPORT INSTRUCTIONS: This form is intended for keeping a current roster of all the facility personnel, other adults and licensees residing in the facility, including backup persons, volunteers and licensee if administrator/director. What Is This Letter and What Do I Do About It? Code § 3306.5. 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). added). The Peculiar “Personnel-ity” of California Personnel File Inspection Laws. However, many states do give employees such rights and spell out the terms under which employees are allowed to inspect those files. To start viewing messages, select the forum that you want to visit from the selection below. added). Indeed, personnel issues often implicate attorney-client privilege, attorney work-product, proprietary information, and privacy issues. In California, three principal statutes govern employee requests to inspect personnel records—Labor Code §§ 1198.5, 226, and 432. 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. A former employee may receive a copy by mail if he or she reimburses the employer for actual postal expenses. 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. Governor Jerry Brown recently signed AB 1744, AB 2674, and SB 1255, all of which take effect on January 1, 2013. Employees are also entitled to a statutory penalty of $750 AND an award of attorneys’ fees and costs for bringing the action. This article discusses the law in California as to what must be given to the employee to inspect upon request. 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. If this is your first visit, be sure to check out the FAQ by clicking the link above. Prior to making records available for inspection or providing a copy of those records, the employer may redact the name of any nonsupervisory employee. Since then, employers have seen more such requests, … 3. This is specifically spelled out in California Labor Code Section 1198.5. Documents to be Provided to the Employee in California and When: 1. 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. Inspection of personnel file in CA California. Below is a list of state laws. Wow! Chapter 9.7 - PUBLIC SAFETY OFFICERS . The standard default position is (b), send some, but not all of the file. A staff member is entitled to inspect or to obtain a copy of his or her own Duke or department personnel file. 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. But unlike Section 1198.5, there is no exception for pending litigation. 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. See below for details. Click to share this page Click for PDF Click to print this page. 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. 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 … Labor Code Section 432, Employers are required to permit current and former employees to inspect or copy payroll records pertaining to that current or former employee. Your company receives a letter from a former employee (or a lawyer) asking to inspect the personnel file or “employment records.” … 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. It states that every employee has the right to inspect his or her personnel records relating … CALIFORNIA GOVERNMENT CODE. If employment records are subpoenaed, the employee must be notified and has the right to object to production of the records. 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. To start viewing messages, select the forum that you want to visit from the selection below. Yes. Collapse. Employers are required by law in California to keep personnel files for every employee. 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 … If an employer fails to permit a current employee, former employee, or representative to inspect or copy personnel records within the times specified, or times agreed to by mutual agreement , the current employee, former employee, or the Labor Commissioner may recover a penalty of $750.00 from the employer. Three provisions of the Labor Code spell out what and how employees may inspect their own personnel files: Labor Code sections 1198.5, 226 and 432. See below for details. That’s right—employers can be sued (or even face criminal liability) over how they did, or did not, respond to personnel file requests. 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. Labor Code 1198.5. California gives employees and former employees the right to inspect any personnel records relating to their performance or to any grievance concerning them. Below is a summary of all three. We aim to provide timely, topical information on the challenges that California employers face. I understand the following: • If I am inspecting my personnel file, I may not add, remove or revise any documents. In addition, employers can redact the names of any non-supervisory employee mentioned in the requesting employee’s file. As the statutes indicate, the answer is “no”— only documents that fall within the categories requested need to be produced. And there is also no exception for pending litigation. As a result, responding to personnel file requests often requires a case-by-case approach. An employee may also bring an action for injunctive relief to ensure compliance and recover costs and reasonable attorney’s fees. Practice File. The Peculiar “Personnel-ity” of California Personnel File Inspection Laws (Lexology) Posted on December 9, 2016 by Michelle Castro. A personnel record is a record that relates to performance and to an employee grievance. No federal law grants employees the right to inspect their personnel files. (b) In addition to subdivision (a), all of the following shall apply to an employee of a school district: The specific information required and the entire text of the statute can be found here. 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. Any personnel action can only be based on what is in the personnel file. 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. Unfortunately, there is no appellate case interpreting the scope of the current statutory language. 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. 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. scenario, a personnel file may turn into evidence in an employment lawsuit. "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. (a) Every employee has the right to inspect personnel records pursuant to Section 1198.5 of the Labor Code. I understand the following: • If I am inspecting my personnel file, I may not add, remove or revise any documents. (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. Section 226 has remedies similar to those available under Section 1198.5. If a former employee seeking to inspect his or her personnel records was terminated for a violation of law, or an employment-related policy, involving harassment or workplace violence, the employer may comply with the request by doing one of the following: (1) making the personnel records available to the former employee for inspection at a location other than the workplace that is within a reasonable driving distance of the former employee’s residence, (2) providing a copy of the personnel records by mail. 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. Records relating to the investigation of a possible criminal offense. More importantly, failure to comply with such a request is a misdemeanor. Labor Code Section 226, subdivisions (c) and (f). Since then, employers have seen more such requests, claims made before the Labor Commissioner, and even lawsuits over production of personnel files. 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. About That Trade Secret Leak: It’s From Inside The Business! 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. Ouch! 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. I am writing to request a copy of all of my personnel, payroll and timesheet records under California Labor Code Sections 226(c), 432 and 1198.5. Former and current employees may, at “reasonable times and intervals,” inspect their personnel files relating to their performance or to any grievance concerning the employee. Labor Code Section 6408(d), Employment records may be subpoenaed from a current or former employer by a third party. Personnel File Checklist Use this form when employees wish to review the contents of their personnel file. 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. Violation of the statute is also a criminal infraction. Division 4 - PUBLIC OFFICERS AND EMPLOYEES. Current through 2020 Legislative Session. Inspect my personnel file Obtain a copy of my personnel file . 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.” The Peculiar “Personnel-ity” of California Personnel File Inspection Laws. I am a [former/current] employee of [Employer]. 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. California Governor Jerry Brown has signed into law new requirements specifying when and how employers must respond to their employees’ requests for inspection and copying of their personnel files. 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. Duke personnel files may only be examined within the confines of the Office of Human Resources during normal work hours. Experienced, forward-thinking advocates who go beyond the expected for clients in dispute prevention and resolution. X. X. “Reasonable intervals” generally means once a year. That time period can be extended by five (5) days by mutual agreement. PLEASE SELECT ALL APPLICABLE PERMITS. Most companies maintain an employee file on each employee which contains various information as to the employee. The employer shall make the contents of personnel records available for inspection to the current or former employee or their representative. The new requirements become effective January 1, 2013. 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