Labor Code Section 1198.5 provides that current and former employees (or a representative) have the right to inspect and receive a copy of their personnel file and records that relate to the employee’s performance or to any grievance concerning the employee. Requests for personnel records often come in the form of a letter from a former employee’s attorney outlining an extensive laundry list of all the documents they “expect” a former employer to produce within 30 days. Well-meaning HR and other professionals who receive these requests often over-produce records that are not required by the Labor Code, exposing the company to potential liability.
What Is a “Personnel Record?”
The Division of Labor Standards Enforcement (DLSE) states that the 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 listed by the DLSE:
- Applications for employment
- Payroll authorization forms
- 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
The DLSE states that 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.
What Not to Include in a Personnel File
Examples of documents that should not be kept in the personnel file are: investigation records or notes arising from discrimination complaints (as those are maintained in a separate confidential file), medical information, including medical records or correspondence related to any medical condition of the employee or the employee’s family, and I-9 Forms (which must be maintained separately, apart from personnel files).
The personnel file should also not contain communications that do not relate to the general categories of promotion, additional compensation, or disciplinary action. For instance, long email threads between management and HR on absences or pay issues need not and should not be kept in a personnel file. Also, inadvertent email communications discussing legal advice issues should not be contained in personnel records (e.g., “Our labor lawyer told us that we need to count this as Paid Sick Leave….”) as those may waive the attorney client privilege.
While a signed acknowledgment of the company’s employee handbook or policy manual is an appropriate personnel record, an entire copy of the handbook is not and may provide ammunition to a clever plaintiff’s attorney trolling for policy violations.
The key takeaway is that employers gathering personnel records in response to a Labor Code request should review the personnel file carefully and, if necessary, consult counsel on which records are legally required to be included in a production or inspection and which records are not.
