Updated May 1, 2023
Under California’s Labor Code, current and former employees have the right to inspect and receive their personnel files. We have previously provided general best practices for responding to such requests. This update will address an issue which frequently arises when employers receive requests for personnel records.
Employee Right to Personnel Files
Labor Code Section 1198.5 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. Upon a written request from a current or former employee or a representative, the employer shall provide a copy of the personnel records at a charge not to exceed the actual cost of reproduction not less than 30 calendar days from the date the employer receives the request.
However, Section 1198.5(e) provides: “The employer may take reasonable steps to verify the identity of a current or former employee or his or her authorized representative. For purposes of this section, “representative” means a person authorized in writing by the employee to inspect, or receive a copy of his or her personnel records.”
Given California law protecting employee privacy, it is not only reasonable, but best practice for employers to confirm that the employee has provided authorization before providing an attorney with records, which may potentially contain a wealth of confidential information regarding the employee – for example, address, salary, SSN. Producing such confidential information of an employee without authorization by the employee may expose the employer to a variety of claims, including violation of the California Constitution’s right of privacy.
Many requests for the personnel records of employees are not sent by the employee, but instead are sent by letter to the employer from an attorney claiming to represent the employee. However, the attorney sending the letter does not always provide along with the letter any authorization signed by the employee authorizing the attorney to inspect or a receive a copy of the employee’s records.
When no authorization accompanies a records request sent by an attorney on behalf of a current or former employee, the employer is justified in taking “reasonable steps” under Section 1198.5(e) prior to producing records to the requesting attorney to verify that the employee has in fact authorized the attorney to request and receive records on the employee’s behalf. A first reasonable step is for the employer to inform the attorney that the employer will not produce employee personnel records until or unless the requesting attorney provides an authorization signed by the employee which allows the employer to verify the identity of the current or former employee. If the attorney responds by providing a wet ink signature of the employee on an authorization, the employer can compare the signature to wet ink signatures of the employee contained in the employee personnel file or other documents in the employer’s possession and complete its verification.
Authenticating Electronic Signatures
However, frequently the requesting attorney responds not with an authorization containing a wet ink signature of the employee, but instead with some form of an electronic signature alleged to be that of the employee, which signature may be alleged to be a copy of the employee’s actual signature or be merely a computer-generated generic “signature” of the employee that bears no resemblance to the employee’s actual signature. The submission of an alleged electronic signature raises a question of whether the employee has actually provided an authentic authorization for the attorney to obtain records on the employee’s behalf.
California courts of appeal have examined the question of when an alleged electronic signature of an employee will be deemed authenticated under California Civil Code section 1633.9, which governs authorization of electronic signatures. Section 1633.9 provides: “(a) An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable. (b) The effect of an electronic record or electronic signature attributed to a person under subdivision (a) is determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the parties’ agreement, if any, and otherwise as provided by law.”
In Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, a California court of appeal rejected an employer’s attempt to establish that an employee’s electronic signature on an arbitration agreement bound the employee, finding “. . . a party may establish that the electronic signature was “the act of the person” by presenting evidence that a unique login and password known only to that person was required to affix the electronic signature along with evidence detailing the procedures the person had to follow to electronically sign the document and the accompanying security precautions.”
In a similar case, Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, an employer sought to enforce an arbitration agreement, which contained an electronic signature of the employee, but the employee claimed not to recall making the electronic signature. The court of appeal found the evidence submitted by the employer to authenticate the employee’s electronic signature inadequate. The Court found that the mere fact that the agreement contained an electronic signature in the name of the employee and a date and time stamp for the signature “was insufficient to support a finding that the electronic signature was, in fact, ‘the act of’” the employee.
Navigating the Complexities of Electronic Signatures
Such cases suggest an employer would be reasonable not to accept as valid an authorization provided by an attorney claiming to represent an employee which contains an alleged electronic signature of the employee, but which provides no “evidence detailing the procedures the person had to follow to electronically sign the document and the accompanying security precautions.” Even if the attorney attempted to provide such evidence without speaking directly to the employee regarding the circumstances surrounding the execution of the alleged electronic signature, the employer may still be unable without more to confirm the acts the attorney alleged were taken by the employee to authenticate a signature were in fact taken by the employee as this is not a situation where the employer was in control of obtaining the employee signature, but rather the employer is merely presented with an alleged electronic signature of the employee by the attorney.
While there may be circumstances under which an electronic signature may verify the identity of a current or former employee for purposes of authenticating an authorization for an attorney to obtain personnel records of the employee – for example, if the employee verbally confirms to the employer the authenticity of the electronic signature – there are other situations where simply providing a purported electronic signature may not be adequate to permit the employer to verify the identity of the employee.
Employers must navigate the competing obligations of providing personnel records under Labor Code section 1198.5 against the obligation to protect employee privacy rights by protecting confidential information from unauthorized disclosure. Requiring a written authorization signed by the employee when the request for records is made by an attorney on behalf of an employee and carefully examining the validity of the signature on any authentication provided by an attorney claiming to have the employee’s authorization to receive such records is an important and reasonable step under Labor Code section 1198.5(e) to meet both obligations.