In an earlier blog post, I addressed how to respond to a former employee’s demand for a copy of a personnel file. In response to recent changes in the law, please read this update to my former post.
The following timely questions were recently posed to the California Advice Group. If you do business in California, then a new law—AB 2674, which takes effect January 1, 2013, imposes new rules and conditions relating to employee personnel records.
How Long Must an Employer Retain Personnel Records?
Labor Code section 1198.5 governs an employee’s right to inspect his or her personnel file. Recently, the California Legislature amended section 1198.5 to require employers to keep personnel records of employees for at least three years after the termination of employment. The change, mandated by AB 2674, goes into effect on January 1, 2013.
How Long Does an Employer Have to Respond to a Request for Personnel Records?
Labor Code section 1198.5 did not contain a deadline for the employer’s response to a request to review files. Under AB 2674, however, an employer must allow a current or former employee, or his or her legal representative, to review or obtain copies of personnel records relating to performance or any grievance within 30 days of the employee’s or representative’s request. If the employer agrees in writing, the review or production can occur within 35 days of the request.
There are also a few new twists on the old rule:
The employer need only honor one (1) request per year from a former employee.
The employer is not required to comply with more than fifty (50) requests from a representative or representatives of employees in one calendar month.
The rule doesn’t apply if the parties are involved in employment-related litigation.
The employer faces a $750 penalty for failure to comply with inspection requests.
Employers need to ensure that requests for personnel records are addressed within the new time limits of AB 2674.
Mary E. Wright is a shareholder in the San Francisco office of Ogletree Deakins, and she serves as the firm’s general counsel.