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Personnel
files and records
California
law requires that employers allow employees and former employees
access to their personnel files and records that relate to the
employee’s performance or to any grievance concerning the employee.
Labor
Code Section 1198.5 Inspections must be allowed at
reasonable times and intervals. To facilitate the inspection,
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, or (3) permit
the employee to inspect the records at the location where they
are stored with no loss of compensation to the employee.
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.
Employees of state agencies,
with few exceptions, and public safety officers are exempt from
the provisions of Labor
Code Section 1198.5. However, other public employees
are covered under Labor
Code Section 1198.5, including, those of a city, county,
special district, community redevelopment agency, or other political
subdivision of the state.
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. 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. Labor
Code Section 226(b) Effective January 1, 2003, an employer
who receives a written or oral request from a current or former
employee to inspect or copy his or her payroll records shall
comply with the request as soon as practicable, but no later
than 21 calendar days from the date of the request. A failure
by an employer to permit a current or former employee to inspect
or copy his or her payroll records within the aforementioned
21 calendar day period entitles the current or former employee
to recover a penalty from the employer in a civil action before
a court of competent jurisdiction. Labor
Code Section 226, subdivisions (c) and (f)
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. Additionally, when a piece
rate or incentive plan, such as a commission plan, is in operation,
piece rates or an explanation of the incentive plan formula
shall be provided to employees. The employer must maintain accurate
production records. IWC
Orders 1 through 15, Section 7, and IWC
Order 16, Section 6,
All employers must provide
employees or their representative(s) access to accurate records
of employee exposure to potentially toxic materials or harmful
physical agents. Labor
Code Section 6408(d)
Employment records may
be subpoenaed from a current or former employer by a third party.
If employment records are subpoenaed, the employee must be notified
and has the right to object to production of the records. Code
of Civil Procedure Section 1985.6(e)
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Q-1.
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Do
I have right to inspect my personnel file? |
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Ans.
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Yes. You may inspect your
personnel file/records at reasonable times and intervals.
To facilitate your inspection, your employer must do
one of the following:
Keep a copy of your
personnel records at the place where you report to work,
Make your personnel
records available to you at the place where you report
to work within a reasonable period time following your
request to inspect such records, or
Allow you to inspect
your personnel records at the location where they are
stored, with no loss of compensation to you.
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Q-2.
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I
am on a leave of absence. Do I still have the right to
inspect my personnel file? |
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Ans.
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Yes. "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.
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Q-3.
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I
am a former employee who quit my job. Do I still have
the right to inspect my personnel file maintained by my
former employer? |
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Ans.
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Yes. Former employees
also have the right of inspection until the statute
or limitations on any claims they may have against their
former employer expire.
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Q-4.
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What
does "at reasonable times and intervals" mean? |
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Ans.
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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 or at anytime during the employee’s
regularly scheduled work shift, with sufficient time being
available to permit the employee an ample opportunity
to conduct a thorough inspection. The inspection time
must be commensurate with the volume and content of the
file, as arbitrary time limits that do not allow for a
sufficient review are not within the spirit of the law.
DLSE has further declared that its enforcement policy
considers "reasonable intervals" to be once every year
unless, there is reasonable cause to believe that the
file has been altered in a manner that might adversely
affect the interests of the employee, or the file contains
information that is pertinent to an ongoing investigation
affecting the employee, in which case more frequent inspections
would be considered "reasonable." |
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Q-5.
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Do
I need to put my request to inspect my personnel file
in writing? |
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Ans.
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No.
Your request may be either oral or written, or on a form
provided by your employer. Information requested on such
a form must be solely for the purpose of identifying the
requesting employee so as to avoid disclosure to ineligible
individuals. |
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Q-6.
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Am
I entitled to see everything in my personnel file? |
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Ans.
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No. By law, the right
to inspect does not apply to:
Records relating
to the investigation of a possible criminal offense.
Letters of reference.
Ratings, reports,
or records that were:
- Obtained prior to your
employment,
- Prepared by identifiable
examination committee members, or
- Obtained in connection
with a promotional examination.
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Q-7.
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What types of records in my
personnel file am I entitled to see? |
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Ans.
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Categories of records
that are generally considered to be "personnel records"
are those that are used or have been used to determine
an employee’s qualifications for promotion, additional
compensation, or disciplinary action, including termination.
The following are some examples of "personnel records"
(this list is not all inclusive):
Application
for employment
Payroll authorization
form
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
Performance
appraisals/reviews
Attendance records |
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Q-8.
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Is
my employer required to give me a copy of my personnel
file? |
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Ans.
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No.
Your employer is not required to provide you with a copy
of your entire personnel file. However, the law does require
that upon request you be given a copy of any instrument
you signed relating to the obtaining or holding of employment.
Additionally, the taking of notes regarding any document
in your personnel file is permitted. |
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Q-9.
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Can
my employer require that I inspect my personnel file on
my own time? |
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Ans.
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Yes,
your employer can require that you inspect your personnel
file on your own free time. 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. |
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Q-10.
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If
I make a request of my employer pursuant to Labor Code
Section 1198.5 to inspect my personnel file and my employer
denies such a request, what can I do? |
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Ans.
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Initially,
you should contact the
Division of Labor Standards Enforcement and explain
that pursuant to the right granted you under Labor
Code Section 1198.5 you requested to inspect your
personnel file and your employer is refusing to allow
you to inspect such file. DLSE will assist you by
explaining the law to your employer. An employer who violates,
refuses, or neglects to comply with an employee’s right
of inspection is guilty of a misdemeanor. Labor
Code Section 1199(c) DLSE has no authority to attempt
remedial action against the employer if it violates, refuses
or neglects to comply with your right of inspection, and
you must avail yourself of appropriate civil remedies,
such as a grievance procedure, civil action, etc. |
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