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Beginning January 1, 2013, amendments to California Labor Code 1198.5 significantly increased employer obligations and a worker’s rights to access and obtain copies of his or her personnel records.

While the statute continues to confirm that every employee “has the right to inspect the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee,” it also extends that right to the employee’s representative.  This could include the worker’s attorney.  Section 1198.5 also clarifies that every current and former employee has these rights.

The law refers to records, not files.  Thus, employee performance and grievance documentation a company maintains outside of any formal “personnel file” is also covered by the law. Section 1198.5 continues to exclude specific categories of documents from the rights of inspection and copying, including records of investigation into possible criminal offenses; letters of reference; ratings, reports or records obtained prior to the person’s employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination; and certain records of public employees.

Prior to this year, employers were only required to: 1) keep a copy of each employee’s personnel records at the place where the employee reports to work; 2) make the employee’s personnel records available within a reasonable period of time following an employee’s request; and 3) allow employees to inspect their personnel records with no loss of compensation. California Labor Code 432 also only required an employer to provide copies of records that the employee had signed.

The revised law requires employers must now:

–       Make requested personnel records available at reasonable times but not later than 30 calendar days from the receipt of a written request.  The parties can agree to extend this to 35 days, but no longer;

–       Provide a copy of all such records on written request (not just those documents the employee signed) within 30 days at a charge not to exceed the actual cost of reproduction.  Again, the parties can agree to extend that deadline to 35 days;

–       Develop and provide a written request form to any employee who asks his or her supervisor or other designated and known company representative;

–       For any current employee, make his or her personnel records available for inspection and, if requested, provide a copy of the records, at the place where that employee reports for work or at another location on which the parties agree;

–       For any former employee, make his or her personnel records available for inspection and, if requested, provide a copy of the records, at the place where that the employer stores the records or at another location on which the parties agree in writing. A former employee may receive the records by mail if he or she pays the actual postal expenses;

–       If a former employee was terminated for a violation or law or policy involving workplace harassment or violence, make his or her personnel records available at a location other than the workplace that is a reasonable driving distance from that person’s residence and provide any requested copy of the records by mail; and

–       Pay a penalty of $750 to the California Labor Commissioner for any violation, in addition to injunctive relief and attorneys’ fees payable to the worker or former worker.

The amended law also provides specific limits and prerogatives on employers’ obligations. An employer:

–       Need only comply with one request per year from a former employee;

–       Need only comply with 50 such requests filed by representatives of employees (e.g., lawyers) in any calendar month;

–       May redact any non-supervisory employee from the requested personnel records;

–       May designate a representative of the business to receive such requests;

–       May “take reasonable steps to verify the identity” of the requesting current or former employee or the authorized representative of that person (e.g. driver’s license or other valid photo ID);

–       Need not comply if the requesting current or former employee files a suit against that employer relating to a personnel matter and if such records are relevant to that suit;

–       Need not comply with any of these provisions for an employee covered by a valid collective bargaining agreement if that agreement meets specific criteria on wage rates and work conditions and provides a procedure for inspection and copying of personnel records.

Labor Code Section 226(b) already imposed similar rules on the inspection and provision of payroll records to current and former employees.  That section requires such access and provision of copies within 21 days of a written or oral request.

The California Division of Labor Standards Enforcement provides more information on the access rules for personnel and payroll records on its website.

Our firm’s attorneys Tim Bowles or Cindy Bamforth can assist you in implementing or revising workplace policies and personnel procedures as appropriate to ensure compliance with these new laws.

 

New CA Labor Laws 2013: Tighter Rules on Personnel Records

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