Akin to a speeding ticket, a former (or current) worker’s demand to see his employment records will likely come in due time to any employer. If the request arrives on an attorney’s letterhead, it will probably seek to create pressure by citing deadlines imposed by one or another California laws. Knowing the score – including ability to see when that lawyer is overreaching – can reduce the stress of the process.

There are three Labor Code sections that direct such disclosures.  Two have specified deadlines, one of those with limited room for extension.  Those two also impose $750 each for non- or late-compliance.

Labor Code 226, Pay Records Disclosure: This section specifies the minimum nine items an employer must include in an earnings statement either “semimonthly or at the time of each payment of wages.” Section 226(b) requires employers to permit employee access to these records.

Section 226(c) provides that an employer who receives a current or former employee’s written or oral request to inspect or receive a copy of such records shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request (emphasis supplied).

Section 226(f) states that employer failure to meet that deadline entitles the employee or the Labor Commissioner to recover a $750 penalty from the employer.

Labor Code 432, Signed Documents Disclosure: This section directs an employer to provide an employee or applicant on request a copy of any document he/she has signed “relating to the obtaining or holding of employment.” A signed employment application or I-9 form are examples. This statute does not specify a deadline for disclosure or a penalty for non-disclosure.

Labor Code 1198.5, Personnel Records Disclosure: This section affords “every current and former employee, or his or her representative [authorized in writing]… 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.”

A document “relating to” performance or any grievance “concerning” the employee potentially covers a broad scope.  Section 1198.5(h) only specifies records that do not have to be disclosed, including for example ● records relating to the investigation of a possible criminal offense; ● letters of reference; and ● ratings, reports, or records that were (i) obtained prior to the employee’s employment, (ii) prepared by identifiable examination committee members, or (iii) obtained in connection with a promotional examination.

Section 1198.5(b)(1) requires the employer to make those records available for inspection no later than 30 calendar days from the date the employer receives a written request, unless the parties agree in writing to extend the date to no more than 35 days (emphasis supplied).

Section 1198.5(c)(3)(B) provides that if the requesting former employee 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 making the records available at an offsite location “within a reasonable driving distance of the former employee’s residence” or ● by providing a copy of the records by mail.
Section 1198.5(k) states that failure to meet the deadline entitles the employee or the Labor Commissioner to recover a $750 penalty from the employer.

Section 1198.5(d) provides that an employer is required to comply with only one such request per year from a former employee.

● An employer should have written protocols and designate a well-trained manager to handle such requests;
● The above points are not inclusive. The designated manager should be thoroughly familiar with all statutory provisions;
● Promptly address and document full compliance with requests as required by the statutes. Note the varying deadlines under section 226(c) and 1198.5(b)(1) depending on the type of record and the technical rules for extension; and
● Consult with experienced legal counsel to assist as appropriate. Many such requests are best handled through such counsel.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

Tim Bowles
June 3, 2022