California rings in the new year with a change in law for employers dealing with requests for personnel files from employees and former employees. Under current law, employers generally must give employees (and apparently former employees) access to their personnel file materials within a reasonable time. With the recent enactment of AB 2674, which becomes effective January 1, 2013, and amends California Labor Code Section 1198.5, employers will need to pay close attention to the new, and in many places ambiguous, requirements for handling such requests.
Key Aspects of AB 2674
1. An employer is required to provide employees and former employees, upon request, with a form to request personnel records "relating to the employee's performance or to any grievance concerning the employee," but employees are not required to use the form.
2. An employer is required to make the records available for inspection, and provide copies if the employee requests copies, within 30 days, which may be extended to 35 days by agreement of the employee and the employer.
3. The request and inspection of the records may be made by a "representative" of the employee authorized in writing to inspect or receive a copy of the records. An employer need not respond to more than 50 requests for copies of records in one calendar month from employee representatives.
4. An employer has to comply with only one request from each former employee to inspect or receive a copy of his or her records per year.
5. An employer may redact from the records being provided the names of non-supervisory employees.
6. The following records need not be provided: records related to investigation of a criminal offense; letters of reference; ratings, reports, or records obtained before the employee's employment; records prepared by identifiable examination committee members; or records obtained in connection with a promotional examination.
7. For employees, the records must be provided for inspection or a copy provided at the place where the employee reports for work or at another mutually acceptable place. If the employee is forced to go to another location, the employee's compensation may not be reduced for the time of travel to or from the site where he or she normally works.
8. For former employees, an employer must make the records available at the location where they are stored. An employer may mail copies of the records if the former employee pays the actual postal expenses.
9. An employer must retain the records for three years after the date of an employee's termination from employment. (Please note that Constangy recommends retaining employment records for a minimum of four years after termination of employment because of applicable statutes of limitations in other laws. Ideally, and if practicable, employment records should be retained indefinitely.)
10. For former employees who were terminated for harassment or workplace violence, an employer may make the records available at a location other than the workplace, provided it is within reasonable driving distance from the former employee's residence. In the alternative, the employer may mail copies of the records to the former employee.
11. If the employee files a lawsuit related to a personnel matter, the right to inspect or copy the records ceases during the pendency of the lawsuit.
12. The requirements do not apply to certain public agency employees, or to employees covered by a collective bargaining agreement, provided that the agreement (a) covers wages, hours and conditions of employment; (b) provides a procedure for inspection and copying of personnel records; (c) provides for overtime compensation; and (d) provides for wages at least 30 percent higher than the state minimum wage.
13. Violation of the law carries a penalty of $750 per violation that is payable to the employee or the California Labor Commissioner, as well as the possibility of injunctive relief and attorneys' fees.
Employer Preparation for 2013 and Beyond
The law does not clearly define what "personnel records" are within its scope. So employers are left to guess and generally, out of caution, to interpret the law broadly if there is no compelling reason to interpret it narrowly. Prior guidance from the state Department of Industrial Relations, Division of Labor Standards Enforcement states as follows:
7. Q. What type of records in my personnel file am I entitled to see?
A. Categories of records that are generally considered to be "personnel records" are those that are used or have been used to determine an employee's qualifications for promotion, additional compensation, or disciplinary action, including termination. The following are some examples of "personnel records" (this list is not all inclusive):
1. Application for employment
2. Payroll authorization form
3. Notices of commendation, warning, discipline, and/or termination
4. Notices of layoff, leave of absence, and vacation
5. Notices of wage attachment or garnishment
6. Education and training notices and records
7. Performance appraisals/reviews
8. Attendance records
In addition to these records specified in the guidance, a "personnel record" probably should include any employment, confidentiality, and arbitration agreements, and any signed policy pages and handbook acknowledgments. Certain other types of records typically should not be included in a personnel file: I-9 forms; confidential medical and benefits records; and administrative investigation materials.
Before January 1, employers should take steps to (1) educate their human resources officials, managers and supervisors about the new law, (2) identify responsibilities of and lines of authority for such employees in handling requests for personnel files, (3) prepare a form for current and former employees potentially to use in requesting personnel file information, and (4) consider creating a "formal log" for dating requests for personnel files and responses to requests. In addition, employers should review employee handbooks and other written policies for consistency with the new law and make certain that a system is in place to retain personnel records as required by SB 2674 and other applicable laws. Finally, a human resources or other management official should be designated to make judgment calls and authorized, when prudent, to seek legal advice.
If you have any questions about SB 2674, please contact any attorney in Constangy's Los Angeles County or Ventura County offices, or the Constangy attorney of your choice.