Most California HR professionals are familiar with requests from employees and former employees for copies of personnel records - as the right to inspect and obtain copies of certain records has been law in California for some time. Current and former employees - and their lawyers - have the right to request access to their personnel files and their payroll records.
Under California Labor Code Section 1198.5 employees have the right to inspect and receive a copy of their personnel records. These are records which show performance; have been used to determine an employee’s qualifications for promotion; additional compensation or disciplinary action - including termination.
Requests for records must be made in writing, within a strict time span and employers should provide the employee making the request with the appropriate form. Within 30 days of making the written request, the employee must be able to inspect their personnel file or be given a copy of it. Should a copy be provided, the employer may make a charge for the cost of copying the file.
The labor commissioner has given examples of information that can be requested - which includes employment applications; performance reviews; warning notices and attendance records, but specifically excluded is anything relating to any investigation of possible crime, references or any documents obtained before the employee was actually employed.
Employees also have the right - under Labor Code Section 226 - to inspect or receive a computer-generated record or copies of itemized wage statements received by the employee. As from January 1, 2019 employees now have the right to inspect or receive a copy of their records - as opposed to earlier when employers could require the employee to make their own copy.
As with personnel files, the employee can be charged for the actual cost of copying the records. Only 21 calendar days is allowed for the employer to provide the pay roll information - a shorter period than that applying to the provision of personnel records.
For failure to adhere to the strict timing code a fine of $750 can be made for each violation and the Private Attorneys General Act may provide for an additional penalty. In any lawsuit, a court can issue an injunction and require the employer to pay the employee’s attorneys’ fees and costs.
Under Labor Code Section 432, employers must - when so requested - provide job applicants, employees and former employees with a copy of anything they signed relating to the obtaining or holding of employment. This request need not be in writing and there is no specified time for delivery.
Employers are advised to send hard copy requiring proof of delivery and a covering letter detailing which documents are being sent in relation to the request received on a specified date. Plus, keeping an exact copy eliminates doubt and is also proof of what has been sent.
