Requesting Employee Personnel Files in California
California Labor Code 1198.5 grants every employee – current or former – the right to review a copy of the personnel records on their performance that their (former) employer holds. These records also reference any grievances that may be related to the employee. Here’s everything you need to know about California Labor Code 1198.5: employee personnel files.
California Labor Code 1198.5 went into effect on January 1, 2013. Inspection of the copies of employee personnel files must occur within 30 days of the employer’s receipt of the employee’s written request. A 35-day time period can be agreed upon between the employer and the employee/their representative for review, but no longer. The right to inspect employee personnel files does not apply to records that are related to the investigation of a potential criminal offense, letters of reference, ratings, reports, or documents associated with a promotional exam.
How to Request a Copy of Employee Personnel Files
For Employees and their Representatives
First, the current or former employee, or their representative, can make a verbal request for a copy of employee personnel files. The employer will provide them with a form to fill out, which will serve as the employee’s written request once completed.
For Employers
Once a request is received, employers are responsible for maintaining a copy of each employee’s personnel records for up to three years after they have left the job, making a copy of said records available for their inspection, and if indicated, deliver the copy to the employee at an agreed-upon location. An employer is required to respond to one request per year from either a current or former employee, but does not have to comply with more than 50 requests for personnel records filed within one calendar month. The employer also has the right to research and verify the identity of the employee or their representative within reason. Nonsupervisory employee names can be redacted from the personnel file before it is made available for inspection.
FAQs About California Labor Code 1198.5: Employee Personnel Files
What happens if the employee requesting records was let go because they violated the law?
If the employee was terminated for violation of the law, or employment-related policy, such as harassment or violence at work, the employer can respond to their request by either making the copies available to the former employee at a location of reasonable distance, or provide a copy of their records by mail.
What happens if an employer fails to honor a current or former employee’s request to inspect their records?
If an employer fails to provide a current or former employee, or their representative, with their employee personnel files for inspection, or violates any of the agreed-upon conditions, such as time and place of record delivery, they may have to pay a $750 penalty either to the employee or the Labor Commissioner. The current or former employee could also initiate legal action for injunctive relief, which is a remedy that restrains a party from doing something, and could receive money through the court process.
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If you or a loved one would like to know more about California Labor Code 1198.5: employee personnel files, get your free consultation with one of our California Employment Attorneys today!