Fielding and Complying with an Employee's Request for their Personnel File
What do you do when a current or former employee requests copies of “their file?” Can you say no? Can you make them view the file in-person? Can you refuse unless the request is in writing? And what do they even mean when they say, "my file?" And what happens when you screw up?
What is "my file?"
An employee requesting his or her "file," is undoubtedly requesting to review a personnel file. Categories of records that are generally considered to be within the "personnel file" 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) that could be found in the file:
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
Labor Code, § 432 also provides that an employer is required to give an employee, former employee, or job applicant, upon request, a copy of any instrument that the employee or applicant signed relating to the obtaining or holding of employment.
However, the contents of a personnel file may not include all that which the former employee is seeking. Sometimes the employee is seeking payroll records, in addition to the personnel file. And sometimes the employee is seeking the underlying time cards that resulted in the payroll records that were generated for the employee. Those records are not considered a part of the personnel file. Rather, those records are considered payroll records and time card records, respectively, and are governed by different rules of request, inspection, and production.
Furthermore, California law provides that the following records are not considered part of the personnel file and employers are not required to produce for inspection or production:
Records relating to the investigation of a possible criminal offense.
Letters of reference.
Ratings, reports, or records that were: (a) obtained prior to employment, (b) prepared by identifiable examination committee members, or (c) obtained in connection with a promotional examination.
Ultimately, it is not the employer’s obligation to discern what it is that the former employee is necessarily seeking in their request.
How Do You Comply with a Request?
The obligation to produce or inspect is a little different for each item:
Personnel Records – governed by Labor Code, § 1198.5. The copy need only be produced upon a written request. The employer can charge the employee the cost to reproduce a copy. And the copy must be produced within thirty (30) calendar days it receives the request.
Payroll Records – governed by Labor Code, § 226. The copy needs to be produced upon a verbal or written request. The copy must be produced within twenty-one (21) calendar days it receives the request.
Timecards – governed by section 7 of each of the Industrial Welfare Commission Wage Orders. The records need to be maintained at the place of employment. The records must be made available for inspection upon a reasonable request.
If a current employee is required to inspect or receive a copy of requested personnel, payroll, or time card records at a location other than the place where he or she reports to work, no loss of compensation to the employee is permitted in order to travel to inspect or retrieve the records.
Thus, to ensure that the employer can comply with a valid request, The Division of Labor Standards Enforcement (DLSE) of the Department of Industrial Relations (DIR) for the State of California indicate the employer must:
maintain a copy of each employee's personnel records for a period of not less than three years after termination of employment
make a current employee's personnel records available for inspection at the place where the employee reports to work
make a former employee's personnel records available for inspection, and if requested by the employee or representative, provide a copy at the location where the employer stores the records, unless the parties mutually agree in writing to a different location.
See DLSE Enforcement Manual, § 42.3 (July 2017).
What Does "reasonable time" or "reasonable interval" Mean?
Record requests are conditioned on inspection or production within a "reasonable time" or "reasonable interval." The statute is silent on what these phrases mean.
DLSE has opined that “reasonable times” is during the regular business hours of the office where personnel records are usually and ordinarily maintained. The employer is not required to make those personnel records or a copy available at a time when the employee is actually required to render a service to the employer.
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.”
If the current or former employee files a lawsuit that “relates to a personnel matter against his or her employer or former employer” the right to inspect records under the Labor Code ceases. Rather, the employee or former employee will likely be able to retrieve these records by way of discovery through a request for the production of documents.
What Happens if the Employer Fails?
If an employer fails to permit the former (or even current) employee to inspect or copy records within the times specified, or times agreed to by mutual agreement, the current employee, former employee, or the Labor Commissioner may recover a penalty of $750.00 from the employer. See Labor Code, §§ 1198.5(k) (personnel records), 226(f) (payroll records).
A former or current employee may also bring an action for injunctive relief to obtain compliance. Furthermore, they may recover costs and reasonable attorney’s fees.