California Employers have long been required to allow an employee to inspect employment records maintained by an employer. A new law signed by Governor Jerry Brown on September 30, 2012 will expand that right by allowing employees to have a copy of those records and imposes new penalties for violations of the law.
Labor Code section 1198.5 as previously drafted allowed an employee to “inspect” personnel records at reasonable intervals and at reasonable times at a location where the employee reports to work. There was no requirement that the employee receive a copy of those records.
In addition, the prior law explicitly excluded from the “inspection” requirement records relating to a criminal offense, letters of reference or ratings, reports or records obtained prior to the employee’s employment or obtained as part of a promotional examination.
Under the newly drafted law, an employee or the employee’s representative are entitled 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. The employer is required to provide access to inspect those records not later than thirty days from receiving a written request. Further, if the employee or representative requests a copy of the records, they must be reproduced at a charge not exceeding the actual cost of reproduction within 30 days of the written request.
The new law requires an employer to maintain employment records for a period of three years following the employee’s termination.
The new law specifically addresses situations where the requesting employee was previously terminated for violation of law or an employment related policy related to harassment or workplace violence. In those instances the law provides that the employee may inspect the records at a location within a reasonable driving distance from the former employee’s home. In the alternative and at the former employee’s cost the records can be provided by mail.
The new law also allows the employer to redact the names of any “nonsupervisory” employee contained in such an employee file.
Failure to comply with the requirements of the statute entitles the employee to bring an action at law for injunctive relief and in such a case receive costs of suit and “reasonable attorneys fees”. Further the Labor Commissioner can impose a $750 fine for noncompliance with the law. Rather than making violation of this statute a misdemeanor as it previously was previously provided, the new law makes violation an infraction.
The law does not apply to employees covered by a valid Collective Bargaining Agreement meeting certain requirements. Further the law does not apply to an employee, or his or her representative, during the pendency of a lawsuit by the employee relating to a personnel matter.
Finally, an employer is not required to comply with more than 50 requests for inspection or copying in one calendar month.
The new law highlights the need to update employee manuals and update procedures to insure compliance and avoid penalties and lawsuits. If you need to revise an existing employee hand book or establish new policies or procedures to comply with the law you are encouraged to contact Parker, Kern, Nard & Wenzel which can provide these services.