California Employer’s Duty to Provide Personnel Records

October 30, 2020, | Employment

California current and ex-employees have the right to request to inspect and receive a copy of their personnel files and records regarding their performance, disputes, wages, and/or documents that they have signed. See Cal. Lab. Code § 1198.5. A current employee includes one who is on a leave of absence, sick, and/or otherwise still employed. There is not definition of a personnel record.  Instead, California law requires employers to turn over, “records that the employer maintains related to the employee’s performance or any grievance concerning the employee.” 

The personnel records are generally those regarding the employee’s qualifications, promotions, change of compensation, discipline and/or termination. The following is a short but not exclusive list:

1. Contracts signed by the employee such as commission agreements, bonus agreements, and employment contacts.
2. Attendance records 
3. Application 
4. Wage information
5. Performance related communications
6. Any education and training records
7. Performance appraisals/reviews
8. Signing of an Employee Handbook
9. Warnings, write-ups and/or accolades.

There is a deadline. The employer must produce or allow inspection no less than 30 days from the date the employer received a written request.  The employer may require the employee to pay for the copies but at the employer’s normal cost. 

As an employer, how long must you maintain employee personnel files? Employers must maintain the files for not less than three (3) years after the employment has ended. If a   request comes from an attorney, and not the employee, the employer may require written consent from the employee to be sure. 

Failure to provide the records may result in a penalty of $750, or an action for injunctive   relief to force the employer to comply.  It is not a bad idea to mitigate any damages by simply copying and sending the documents to avoid injunctive relief that could cost you the employee’s attorneys’ fees and any costs for obtaining injunctive relief. 

Employers are also required to provide documents signed by the employee such as an application, arbitration agreement, and so forth pursuant to Section 432 of the California   Labor Code. Payroll records are to be provided to current and/or former employees pursuant to California Labor Code Section 226 (b) and by no later than 21 calendar days from the date of the request. Failure to do such entitles the employee to recover a penalty in a civil action. See Cal. Lab. Code. Sec. 226 (d), (f). 

Note that an employee generally cannot obtain records if he/she filed a lawsuit relating to the personnel matter. Cal. Lab. Code Section 1198.5 (n), (0). 

There are a myriad of wage and hour laws in California. For questions, additional guidance on preventative lawsuit practices or assistance with your employment matters, contact Ms. Catherine M. Corfee at (w) (916) 487-5441; email: [email protected]

Corfee Stone Law Corporation provides legal services to   employers and employees in Northern and Southern California. Since Ms. Corfee represents both sides, she is distinguished from other employment attorneys due to her experience and knowledge of both strategies and laws supporting the other side. 

This article should not be used as a attorney substitute for competent legal advice.

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