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What Employers (and Employees) Need to Know About Personnel Records

05
APR

by: jcinar

California Labor Code Section 1198.5 allows every employee to inspect their personnel records maintained by their employer.  The employer has to make the contents of those personnel records “at reasonable intervals and at reasonable times.”  Effective January 1, 2013, the following amendments have been made to Section 1198.5:

 

  • Now, all current and former employees, or their representatives have the right to review and receive a copy of their personnel records;
  • The employee’s request to inspect his or her personnel records must be in writing.  If it is the representative, the current or former employee must issue their written authorization;

 

The employer has to make the records available and produce the records to the employee no later than thirty (30) days after receiving the written request.

 

Further, effective January 1, 2013, employers must:

 

  • Maintain a copy of each employee’s personnel records for no less than three years after termination;
  • Make personnel records of current employees available for inspection (and provide a copy) at the place where the employee reports to work, or another location if agreed upon;
  • Make personnel records of former employees (and provide a copy) at the location where the employer stores the records, unless the parties mutually agree in writing to a different location. (Note that under the amendments, the requesting former employee may receive a copy by mail if he or she reimburses the employer’s postal expenses).
  • If a former employee was terminated for a violation of law or employment-related policy involving harassment or workplace violence, the employer may instead (1) make the records available at a location other than the workplace that is within reasonable driving distance of the employee’s residence; or (2) provide a copy of the records by mail (the employer may ask to be reimbursed for his/her postal expenses).

 

The amendments to Labor Code Section 1198.5 impose the following restrictions on employees:

 

  • A former employee may only make one Ssection 1198.5 request per year;
  • An employer need only comply with up to fifty (50) Section 1198.5 requests per month;
  • Employers may take reasonable steps to verify the identity of the current or former employee or his or her representative;
  • Employers may designate the person to whom a request is made;
  • Employers may redact names of any nonsupervisory employees contained in the records prior to inspection or copying;
  • An employee who is under an employment contract that was negotiated for and contains provisions dictating wages earned, hours of work, and working conditions, may not make a Section 1198.8 request.

 

There are penalties for an employer’s non-compliance with Section 1198.5.  Specifically, the employer can be fined in the amount of $750 and can face paying the employee’s attorney’s fees and costs in connection with any non-compliance civil action.

 

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