Governor Jerry Brown recently signed AB 1744, AB 2674, and SB 1255, all of which take effect on January 1, 2013. The Peculiar “Personnel-ity” of California Personnel File Inspection Laws. Section 226 also authorizes the employee to sue for a court order requiring the employer to produce the information and also a penalty of $750, and employees can also recover attorneys’ fees for bringing the lawsuit. Documents to be Provided to the Employee in California and When: Labor Code section 1198 (n) and (o). Click to share this page Click for PDF Click to print this page. Duke personnel files may only be examined within the confines of the Office of Human Resources during normal work hours. Below is a summary of all three. And failure to comply is a criminal infraction. In its first change to the state statute on inspection of personnel files since the law was enacted a dozen years ago, the California Legislature passed, and Governor Jerry Brown signed on September 30, a bill that significantly changes the rights of current and former California employees, and the What Makes California Employment Law Different ... and How to Deal With It. The right to inspect a personnel file under section 1198.5 stops once a lawsuit is filed. You have the right and responsibility to monitor the employee's inspection of a file to ensure that nothing is removed, destroyed or altered, and to return the file to the proper place.� No federal law grants employees the right to inspect their personnel files. In addition, employers can redact the names of any non-supervisory employee mentioned in the requesting employee’s file. Effective January 1, 2013, California law 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. By law, the right to inspect does not apply to: 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. Section 226 has remedies similar to those available under Section 1198.5. So the overall scope of the statute still remains an open-ended question. A personnel record is a record that relates to performance and to an employee grievance. Since then, employers have seen more such requests, … You should contact the Division of Labor Standards Enforcement (DLSE) and file a claim for a $750.00 penalty against your employer for failure to comply with Labor Code Section 1198.5. California Labor Code Section §1198.5 controls the right of employee access to personnel files. Code of Civil Procedure Section 1985.6(e), (Elevator, Ride & Tramway, Pressure Vessel), Permits, Registrations, Certifications, & Licenses, Worker Safety & Health in Wildfire Regions, Electronic Adjudication Management System, Commission on Health and Safety and Workers' Compensation (CHSWC), Labor Code Section 226, subdivisions (c) and (f), Code of Civil Procedure Section 1985.6(e), Locations, Contacts, and Hours of Operation, Licensing, registrations, certifications & permits. PLEASE SELECT ALL APPLICABLE PERMITS. STATE OF CALIFORNIA — HEALTH AND HUMAN SERVICES AGENCY. To examine, inspect and/or copy any records reflecting my employment history, including records of my education, personnel history, supervisory or organizational … The Not-So-Wild West: Practical Tips for California Investigations, A Rock and a Hard Place: Keeping a Lid On Internal Workplace Investigations, There’s An App For That: Considerations in Employee GPS Monitoring, Updates in the Complicated World of Employee Privacy, San Francisco’s 10-Day Travel Quarantine Order Tells Holiday Travelers to Stay Home, Though Santa Likely Excepted, Cal/OSHA Approves Emergency Temporary COVID-19 Standard, Asked and Answered: Updates on California’s Pay Data Reporting Law, Not So Happy Thanksgiving? added). You may inspect your personnel file/records at reasonable times and intervals. Prior to making records available for inspection or providing a copy of those records, the employer may redact the name of any nonsupervisory employee. Fortunately, this statute is simpler than the others. Right to Inspect Personnel Files. In signing below, I understand that the documents to be reviewed will contain information regarding my education and employment history and may include such items as payroll records, employment history, prior performance Seyfarth Synopsis: Within the last few years, the California Legislature has amended laws related to an employee’s right to inspect personnel records, intending to … Make a current employee’s personnel records available, […] Nevertheless, the statute excludes certain files. Labor Code § 1198.5 Title 1 - GENERAL. See below for details. Make a former employee’s personnel records available, 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. BUSINESS LITIGATION. Your company receives a letter from a former employee (or a lawyer) asking to inspect the personnel file or “employment records.” What (if anything) should you do in response? I understand the following: • If I am inspecting my personnel file, I may not add, remove or revise any documents. While California employees have broad rights to view documents relating to … Additionally, when a piece rate or incentive plan, such as a commission plan, is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. California Governor Jerry Brown has signed into law new requirements specifying when and how employers must respond to their employees’ requests for inspection and copying of their personnel files. Section 3306.5 - Inspection of personnel files. Labor Code Section 226, subdivisions (c) and (f). • Names of non-supervisory employees and other privileged and/or private, third party information will be removed from the records prior to my inspection and/or If an employer fails to permit a current employee, former employee, or representative to inspect or copy personnel 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. PERSONNEL REPORT INSTRUCTIONS: This form is intended for keeping a current roster of all the facility personnel, other adults and licensees residing in the facility, including backup persons, volunteers and licensee if administrator/director. Code § 3306.5. Since then, employers have seen more such requests, claims made before the Labor Commissioner, and even lawsuits over production of personnel files. Employers are required to give an employee or job applicant, upon request, a copy of any instrument that the employee or applicant has signed relating to the obtaining or holding of employment. For the same reason, you should make sure that you have a copy of the request that you send. The Peculiar “Personnel-ity” of California Personnel File Inspection Laws (Lexology) Posted on December 9, 2016 by Michelle Castro. The Peculiar “Personnel-ity” of California Personnel File Inspection Laws. 1. Although there is no specific definition for this phrase, the Division of Labor Standards Enforcement (DLSE) has opined that “reasonable times” is during the regular business hours of the office where personnel records are usually and ordinarily maintained. Gov. Personnel files and records Effective January 1, 2013, California law 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. CALIFORNIA GOVERNMENT CODE. That time period can be extended by five (5) days by mutual agreement. The standard default position is (b), send some, but not all of the file. The employer must provide these wage statements at the time employees are paid or semi-monthly. 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. To facilitate your inspection, your employer must do all of the following: Yes. The following are some examples of "personnel records" (this list is not all inclusive): Yes. Former employees also have a right of inspection. A request for employee records should be in writing. Covered documents: Under the terms of the statute, it appears that documents such as performance reviews, commendation letters, disciplinary notices (“write-ups”), corrective action plans, and complaints about the employee would likely be covered. Personnel Files. • Names of non-supervisory employees and other privileged and/or private, third party information will be removed from the records prior to my inspection and/or receiving a copy. Governor Jerry Brown recently signed AB 1744, AB 2674, and SB 1255, all of which take effect on January 1, 2013. This was particularly to allow the employees access to their records. As a practical matter, documents covered by this section can also be covered by Section 1198.5 (i.e., signed performance reviews or signed disciplinary write-ups). A former employee, or her attorney, sends you a letter demanding copies of the employee’s personnel file and pay records. In California, three principal statutes govern employee requests to inspect personnel records—Labor Code §§ 1198.5, 226, and 432. This article discusses the law in California as to what must be given to the employee to inspect upon request. Your company receives a letter from a former employee (or a lawyer) asking to inspect the personnel file or “employment records.” … The law specifically requires that employers allow employees and former employees access to their personnel files and records that relate to the employee’s performance or to any grievance concerning employee. Seyfarth Synopsis: Within the last few years, the California Legislature has amended laws related to an employee’s right to inspect personnel records, intending to ensure employees have access to those records. Employers must also remember to protect other important rights. education, personnel history, supervisory or organizational files relating to my application for employment. Yes. See below for details. In the recent past, the state of California reviewed its legislation regarding the right to inspect personnel files. The California Division of Labor Standards Enforcement defines “reasonable times” as during the regular business hours of the office in which the records are maintained, or at any time during the employee’s regularly scheduled shift. The proper response depends, first, on what the employee is asking to inspect. Chapter 9.7 - PUBLIC SAFETY OFFICERS . If the inspection you are requesting is not a listed permit, please contact Building Safety during open counter hours to discuss. Labor Code 1198.5. In California, three principal statutes govern employee requests to inspect personnel records—Labor Code §§ 1198.5, 226, and 432. 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. See below for details. If the employee is required to inspect or receive a copy at a location other than the place where he or she reports to work, no loss of compensation to the employee is permitted, (3) 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. The right to inspect a personnel file under section 1198. Click to share this page Click for PDF Click to print this page. Ouch! Collapse. 4. Seyfarth Synopsis: Within the last few years, the California Legislature has amended laws related to an employee's right to inspect personnel records, intending to ensure employees have access to those records. Inspect my personnel file Obtain a copy of my personnel file . You may want to inspect your personnel file for multiple reasons. Section 432 applies to any document that an employee (or job applicant) “signs” that is related to obtaining or holding employment. Please mail them to me at the below address within 21 days of your receipt of this letter: [address]. An employee may also bring an action for injunctive relief to ensure compliance and recover costs and reasonable attorney’s fees. If a former employee seeking to inspect his or her personnel records was terminated for a violation of law, or an employment-related policy, involving harassment or workplace violence, the employer may comply with the request by doing one of the following: (1) making the personnel records available to the former employee for inspection at a location other than the workplace that is within a reasonable driving distance of the former employee’s residence, (2) providing a copy of the personnel records by mail. The Peculiar “Personnel-ity” of California Personnel File Inspection Laws. A staff member is entitled to inspect or to obtain a copy of his or her own Duke or department personnel file. Seyfarth Synopsis: Within the last few years, the California Legislature has amended laws related to an employee’s right to inspect personnel records, intending to ensure employees have access to those records. Labor Code Section 226(b) An employer who receives a written or oral request from a current or former employee to inspect or copy his or her payroll records shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request. Most companies maintain an employee file on each employee which contains various information as to the employee. These laws set forth new rules regarding itemized wage statements and personnel file inspection and copying, as well as the Wage Theft Prevention Act notice employers must provide to non-exempt employees. Rarely does a week go by that the California Advice Group does not field calls about an employee’s right to access or get copies of his personnel file. In the state of California, every current employee, or his or her representative has the right to inspect and receive a copy of their personnel records, maintained by their employer. Failure by an employer to permit a current or former employee to inspect or copy his or her payroll records within the 21 calendar day period entitles the current or former employee to recover a penalty from the employer in a civil action before a court of competent jurisdiction. Employers are required by law in California to keep personnel files for every employee. But the Labor Commissioner has issued some guidance on its website on what might be included in a “personnel file,” including, in addition to the above, things like an employment application, notices of leaves of absence or vacation, education and training notices, and attendance records. Within the last few years, the California Legislature has amended laws related to an employee’s right to inspect personnel records, intending to ensure employees have access to those records. For example, if an employee (or former employee) files a lawsuit that “relates to a personnel matter” against the employer, then the right to inspect or copy the records ceases during the pendency of the lawsuit. Your company receives a letter from a former employee (or a lawyer) asking to inspect the personnel file or “employment records.” What (if anything) should you do in response? Yes. Employee's Right To Inspect Personnel Files in California Most companies maintain an employee file on each employee which contains various information as to the employee. How and when a California employer responds to these requests can have legal consequences. If employment records are subpoenaed, the employee must be notified and has the right to object to production of the records. Current through 2020 Legislative Session. What happens if I forget to produce records in time? Cal. However, if your state allows employees to inspect their own personnel files, these laws also often give you the right to have yourself or another supervisor present during the inspection to ensure that no improper documents are added to any personnel files. Click to share this page Click for PDF Click to print this page. scenario, a personnel file may turn into evidence in an employment lawsuit. A current or former employee may also bring an action for injunctive relief to obtain compliance, and may recover costs and reasonable attorney’s fees in such an action through the court process. Employers must make the records available to the employee within twenty-one (21) days. Your employer may require that you inspect your personnel file on your own free time. But unlike Section 1198.5, there is no exception for pending litigation. The employer may take reasonable steps to verify the identity of a current or former employee or an authorized representative. [/dcs_rounded_box] [dcs_emptyspace h=”10″] Inspections No. Cal/OSHA Approves Temporary COVID-19 Standard, Fall Into Handbook And Policy Update Season, ERISA & Employee Benefits Litigation Blog, Workplace Safety and Environmental Law Alert Blog. added). Below is a list of state laws. Unlike blogs that simply provide legal updates, this blog will have a running series of Workplace Solutions that will address evolving areas of interest, including California leaves of absence, recruiting and hiring, trade secrets, and the use of social media. "Employee" is construed to mean a person who is currently employed, one who is laid off with rights of reemployment, or a person on leave of absence. There is no timeline for production and there is no private right of action to enforce compliance. Violation of the statute is also a criminal infraction. Examples include job applications, handbook acknowledgments, arbitration agreements, job descriptions, and any signed policy acknowledgments (anti-harassment, retaliation, discrimination, at-will employment, meal/rest break polices, etc.). 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. 3. I understand the following: • If I am inspecting my personnel file, I may not add, remove or revise any documents. However, many states do give employees such rights and spell out the terms under which employees are allowed to inspect those files. A California criminal cases, a pitchess motion is a defendant’s request to inspect a law enforcement officer’s personnel file for evidence of police misconduct.Defense attorneys typically bring a Pitchess motion as part of the pretrial process when they suspect officers may have acted improperly, such as filing a false police report us using excessive force. These laws set forth new rules regarding itemized wage statements and personnel file inspection and copying, as well as the Wage Theft Prevention Act notice employers must provide to non-exempt employees. 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 service to the employer, if the requester is the employee. California’s Labor Code does not specifically define the term “personnel records.” But an employee’s right to request items in a personnel file often include the right to examine the following: records relating to an employee’s employment history, an application for employment, For most employers, those files are (1) records about a criminal offense, (2) letters of reference, and (3) ratings, reports or records obtained before the employee’s employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination. (a) Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee. More importantly, failure to comply with such a request is a misdemeanor. Consistency is the key You should begin a personnel file for each employee on the date of hire and most, but not all, important Maintain a copy of each employee’s personnel records for no less than 3 years. Seyfarth Synopsis: Within the last few years, the California Legislature has amended laws related to an employee’s right to inspect personnel records, intending to … See below for details. Personnel File Inspection. This was particularly to allow the employees access to their records. To start viewing messages, select the forum that you want to visit from the selection below. IWC Orders 1 through 15, Section 7, and IWC Order 16, Section 6, All employers must provide employees or their representative(s) access to accurate records of employee exposure to potentially toxic materials or harmful physical agents. That’s right—employers can be sued (or even face criminal liability) over how they did, or did not, respond to personnel file requests. 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