FRESNO, Calif. – Have you ever wondered what’s in your employee file? As an employer, how do you go about allowing that? Or do you at all? We recently saw a Farm Employer Labor Service Q & A on the topic and thought it would be good information to pass along to Datatech clients and guests.
Portions of an employees’ employment records the law entitles an employee to inspect. In this FELS article, the question had to do with employees’ time records, but the question is very broad, with compliance implications for employers in litigation-happy California.
You might face this situation: Your company receives a letter from a former employee or the former employee’s attorney demanding to inspect the employee’s personnel file. How should you respond? The answer to that question is important because you can face civil or criminal liability for failing to respond correctly.
The answer depends on what the employee is asking to inspect. Three provisions of the Labor Code spell out what and how employees may inspect their own personnel files: Labor Code sections 1198.5, 226 and 432.
Section 1198.5 gives employees and former employees the right to inspect personnel records “related to the employee’s performance or to any grievance concerning the employee.” You must let the employee or representative inspect or copy these records within 30 days after the request. The employer and employee may agree to extend this deadline by five days.
Broadly worded, section 1198.5 appears to cover such documents as performance reviews, disciplinary notices, and complaints about the employee. The Labor Commissioner’s guidance on the applicability and scope of section 1198.5 indicate it also includes an employment application, documents related to a leave of absence, or record of use of vacation, training records, and attendance records.
Section 1198.5 excludes certain records, such as those pertaining to a criminal offense, letters of reference, or records about the employee obtained by the employer before the employee’s employment. You may redact the name of any non-supervisory employee mentioned in the requesting employee’s file.
SB 1198 does not apply when the employee is suing you, an apparent attempt by the Legislature to avoid interfering in the civil discovery process.
If you do not allow inspection or copying of records covered by section 1198.5 by the deadline, the employee seeking the records may seek a court order to compel you to comply, and the employee is entitled to a statutory penalty of $750 plus attorneys’ fees for bringing the action. A failure to comply with section 1198.5 is a criminal infraction of the Labor Code.
Labor Code section 226 requires employers to provide employees with itemized wage statements for each pay period showing specific categories of information about their earnings:
- Gross wages earned
- All hourly rates at which the employee was paid
- Hours worked at each rate
- The number of piece-rate units produced
- Applicable piece rate(s)
- All deductions from gross wages
- Net wages earned
- Inclusive dates of the pay period
- The employee’s name
- The last four digits of the employee’s Social Security Number or employee identification number
- The name and address of the legal entity employing the employee
- If the employer is a farm labor contractor, the name and address of each legal entity that hired the FLC
An employer must permit a current or former employee to inspect or copy payroll records pertaining to that current or former employee. An employer receiving a written or oral request from a current or ex-employee to inspect or copy payroll records must comply with the request as soon as practicable, but no later than 21 calendar days after the date of the request. Failure to comply entitles the current or ex-employee or Labor Commissioner to recover a $750 penalty from the employer.
Labor Code section 432 lets an employee or applicant get upon request a copy of any document signed by the employee or applicant relating to obtaining or holding employment. Examples might include a job application, acknowledgment of receipt of an employee handbook, an arbitration agreement, or a signed acknowledgment of employment policies, such as those addressing anti-harassment, retaliation, discrimination, or at-will employment, meal-period waivers, and acknowledgments of choosing to work on all seven days of a workweek.
While there is no deadline, private-right-of-action, or specific penalty for violating section 432, documents covered by that statute might also be covered by section 1198.5, meaning prompt compliance is a good practice.
Employers do not necessarily have to produce all records demanded by an employee or representative. A response to such a demand should be evaluated on a case-by-case basis, as some personnel issues can overlap issues of attorney-client privilege, proprietary issues, or privacy issues.
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