NEW LAW GIVES EMPLOYEES GREATER ACCESS TO THEIR PERSONNEL FILES

Prior to 2013, the California Labor Code section 1198.5 only required employers to permit employees to inspect their personnel records relating to the employee’s performance or to any grievance concerning the employee within a “reasonable time” after a request.  The existing law also limited the rights of former employees to inspect their personnel files subject to conflicting interpretations.

EXAMPLE SITUATION

In 2007, a bill was passed allowing former employees the right to review their personnel files.  At that time, there was ongoing ambiguity as to the rights of former employees compared to current employees.  However, Governor Schwarzenegger vetoed that same bill shortly afterward.   Besides the vetoed bill in 2007, section 1198.5 was not amended for nearly a dozen years.

However, the California Legislature recently amended section 1198.5 by expanding the rights of not only current employees, but former employees as well.  Along with many other changes to California laws, 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.  The new requirements, which are contained in the Assembly Bill (A.B.) 2674, became effective January 1, 2013.

Under the new law, current and former employees now have the right to view the contents of the personnel file and may also receive a copy of the contents on request, provided they pay the actual cost of copying.  The request must be in writing.  Under Section 1198.5(b)(2)(A)(ii), the employers must provide a form for the employees who make the request.  However, the employees are not required to use the form provided by the employer.

Upon request from a former or current employee, employers must now provide a copy of the requested personnel records or make them available for inspection within 30 calendar days.  In addition, the employers must also maintain copies of personnel records for at least three years after termination of the employee.  The new law also provides that inspection or copies must be provided at the place where the employee reports to work or at an agreed location for current employees. If the employee has to go to a different location, there will be no loss of compensation to the employee for the time traveled.

As for former employees, the inspection or copies must be provided to them at the location where the employer stores the records, unless both the employer and former employee agree to a different location.  The employer may also mail the records to the former employees if they agree to reimburse the employer for the paid postal expenses.  However, each former employee is limited on how times they can make the request.  Under the new law, employers only have to respond to one request a year from each former employee.

The new law also provides that pending litigation limits the ability to inspect or copy the personnel files.  If a current or former employee files a lawsuit based on a personnel matter, the right to inspect or copy files stops during the pendency of the lawsuit.  The amended statute also does not require employers to permit current or former employees to inspect and/or copy records relating to the investigation of a possible criminal offense or letters of reference.  The employers are also not required to disclose the ratings, reports, or records that were obtained prior to an employee’s employment, or prepared by identifiable examination committee members, or obtained in connection with a promotional examination.

The amended statute provides that employers may not refuse access to records to former employees who are contemplating litigation against the employer.  Even if the former employee is seeking to inspect his or her personnel records to prove that he or she was terminated for a violation of law, or an employment-related policy, involving harassment or workplace violence, an employer must comply with the request.  If the former employee is making the request for these purposes, the employer may make 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, or the employer can provide a copy of the personnel records by mail.

If the employees have signed a collective bargaining agreement, they do not have complete access under the amended statute.  The requirements of the amended section 1198.5 do not apply to employees covered by a collective bargaining agreement with certain provisions, such as the procedure for the inspection and copying of personnel records.

CONCLUSION SUMMARY

There are still some ambiguities pertaining to the new law.  For example, the amended section 1198.5 does not define a personnel file, nor does it indicate what should or should not be included within it.  The new law does not change the extent of what personnel records can be inspected or copied.  As the existing Section 1198.5 also provided, the two categories of personnel records maintained by a California employer that must be produced for inspection, or copying are 1) records “relating to the employee’s performance;” and 2) records relating to “any grievance concerning the employee.”  However, the legislature has broadly interpreted these categories to also include applications for employment and attendance records.

As a general recommendation, all California employers must be aware of the new rules under the amended statute.  Furthermore, all employers should now train their supervisors on the new rights of current and former employees for requesting and copying their personnel files, as well as the proper procedures as indicated in section 1198.5.  The employers should also consider some form of policy for keeping all personnel records to confirm that the records are kept for the three-year period after the termination of someone’s employment.  If the employer believes that any current employee may be at risk of harm by releasing such records, they may redact the names of non-supervisory employees from the responsive records before production or copying.  Any employer who fails to comply with the amended statute may be subject to a $750 penalty, injunctive relief, and attorneys’ fees.