With the recent enactment of Assembly Bill 2674 (which became effective on January 1, 2013) and the corresponding amendments to California Labor Code section 1198.5, the legislature has clarified the extent of an employee’s right to inspect personnel records related to performance or grievances concerning the employee.
As of January 1, an employer must maintain a copy of each employee’s personnel records for at least three years following termination of employment. Current and former employees (or their designated representatives) are entitled to inspect and receive a copy (provided they pay for copying costs) of personnel records within 30 days of making a request. Employers must provide upon request a written form that can be used by employees who wish to inspect their personnel records.
For current employees, if an employer does not make personnel records available for inspection or copying at the employee’s workplace, the employee cannot suffer a loss of compensation due to the time needed to travel to the location where the records are located. For former employees terminated due to a violation of a law or an employer policy involving harassment or workplace violence, employers have the option of either sending a copy of the personnel records to the former employee via mail or making the records available for inspection at a location other than the workplace, so long as it is within a reasonable driving distance of the former employee’s residence. Employers also have the right to redact the names of any non-supervisory employee from records being copied and produced.
These requirements do not apply to employees covered by valid collective bargaining agreements that provide a mechanism by which employees can inspect and receive personnel records.
In order to ease the burden on employers, the Labor Code limits the number of record requests that may be filed by a representative or representatives of employees to 50 per calendar month. Moreover, former employees are only permitted to make one records inspection request per year when seeking records from their former employer.
Employers who fail to comply with the law may be subject to a $750 fine, which can be recovered by a current or former employee or the Labor Commissioner. Current and former employees may also seek injunctive relief and/or attorneys’ fees in actions for enforcement of an employer’s obligations under Labor Code 1198.5.
For additional information on California employment record keeping obligations, contact your Proskauer attorney.