Under California’s Labor Code, current and former employees have the right to inspect and receive their personnel files. Employers should have procedures in place for responding to requests.
Responding to Personnel Record Requests
Be sure to designate someone in your organization to receive personnel record requests. If you do not already have a standard personnel file request form, create one. This form will be sent to employees to complete their requests. Add a reminder on your calendar with the date the response is due. Before sending files, review them to ensure excludable items are not sent and save copies for your files.
What is the law?
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.
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. The right to inspect personnel files does not apply to an employee covered by a valid collective bargaining agreement.
Employee Right to Pay Stubs
Labor Code Section 226(b): Requires employers to permit current and former employees to inspect or copy payroll records pertaining to that current or former employee. An employer who receives a written or oral request from a current or former employee to inspect or copy his or her payroll records must comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request.
Labor Code 432: If an employee or applicant signs any instrument relating to the obtaining or holding of employment, he shall be given a copy of the instrument upon request.
Time Cards: Employees Do Not Have the Same Statutory Right to Review Time Cards
Labor Code 1174: Requires employers to keep payroll records showing the hours worked daily by and the wages paid to, and the number of piece-rate units earned by, and any applicable piece rate paid to, employees employed at the respective establishments for not less than three years. The code further states, “An employer shall not prohibit an employee from maintaining a personal record of hours worked, or, if paid on a piece-rate basis, piece-rate units earned.” But it does not say that such must be produced on demand.
Should an employee request to review time cards, consult with your attorney before producing such.
In light of the increased demands by Plaintiffs’ attorneys for production of employee records, we recommend consulting with your attorney before producing documents to an employee’s representative to ensure compliance with the above-referenced laws.