How to Respond to a Former Employee’s Demand for a Copy of a Personnel File

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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Effective January 1, 2013, the California Labor Code, which was amended in 2012, will have specific requirements regarding the rights of employees to view their personnel records. In response to the changes in the law, please read my update to this post.

Question #1

My company terminated an employee who worked in a warehouse in Northern California. Two weeks later, I received a letter from a law firm demanding a copy of the former employee’s personnel file. We haven’t been served with a lawsuit. Do we have to send him a copy?

Short Answer

The employer must send copies of certain documents within the file but not the entire file. Upon request, employees must be given a copy of any instrument they signed that relates to obtaining or holding a job. Accordingly, the employer must produce copies of documents like job applications, acknowledgments for receipt of training or the employee handbook, and warnings or performance improvement plans executed by the employee, etc.  Cal. Lab. Code §1198.5.

Question #2

Additionally, the lawyer says that I could go to jail if I don’t get him the personnel file. What’s up with that?

Short Answer

Failure to respond within a reasonable period of time following the request for review or copies of the personnel file can subject the employer or his agent to monetary penalties and imprisonment under §1198.5 of the California Labor Code and Division of Labor Standards Enforcement’s (DLSE) FAQ on personnel files and records. Although the California Advice Group recommends prompt attention to every request for employee documents, no one in the group has encountered a situation where delay results in jail time. Employees typically tack a request for the penalty onto other claims in a lawsuit as a way to increase the money awarded to the prevailing plaintiff.

California’s General Rules Relating to Inspection and Copy of Personnel Files

Rarely does a week go by that the California Advice Group does not field calls about an employee’s right to access or get copies of his personnel file. More often than not, the call concerns a former employee, the request is from the employee’s attorney, and it is the precursor to a lawsuit. There are three ways to respond to requests from former employees: (a) let the former employee return to work and review his or her file under the watchful eyes of a human resources (HR) representative; (b) send the employee copies of the document that he or she is entitled (by statute) to have; or (c) after getting the advice of HR or your attorney, send a copy of the entire file. The standard default position is (b), send some, but not all of the file.

California Labor Code Section §1198.5 controls the right of employee access to personnel files. It states that every employee has the right to inspect his or her personnel records relating to performance or to any workplace grievance.  According to the FAQ page of the DLSE, the state agency charged with enforcing the Labor Code, this translates into access to the employee’s:

  • application for employment;
  • payroll authorization form;
  • notices of commendation, warning, discipline, and/or termination;
  • notices of layoff, leave of absence, and vacation;
  • notices of wage attachment or garnishment;
  • education and training notices and records;
  • performance appraisals/reviews; and
  • Attendance records.

The right to access, however, does not include the right to review or to receive copies of the entire file. An employer does not have to grant access to (or provide copies of):

  • records relating to the investigation of a possible criminal offense;
  • letters of reference; or
  • ratings, reports, or records that were:
    • obtained prior to the employee’s employment;
    • prepared by identifiable examination committee members; or
    • obtained in connection with a promotional examination.

This list pertains to employees of private entities.  Additional restrictions apply to peace officers or government employees.

Moreover, the right to access does not include the right to copies. The employee is entitled to copies only of documents that he or she signed. The employee can, however, make notes of the contents of any other document in his file.

The statute requires the employer to make the file available for review at “reasonable intervals” and at “reasonable times.” The DLSE takes the position that an annual review meets the statutory “interval” standard unless the file is altered due to an adverse employment action within the year since the last review, i.e., the employee is demoted, is placed on a performance improvement plan, or some other negative action is taken in the 12 months since his or her last review of the personnel file.  (DLSE FAQ)  A reasonable time is interpreted to mean during regular business hours or during the employee’s shift.

Failure to comply with section 1198.5 is a misdemeanor. Under §1199 of the California Labor Code, conviction can subject the employer “or other person acting either individually or as an officer, agent, or employee of another person” to a penalty of not less than $100 per offense or imprisonment for not less than 30 days or both.

As a side note, most personnel files do not (and should not) contain payroll records beyond forms noting increases or decreases in the employee’s rate of pay. If you receive a request from a former employee for “payroll” records, you must provide the complete records no more than 21 calendar days from the date of the request.

(b) An employer that is required by this code or any regulation adopted pursuant to this code to keep the information required by subdivision (a) shall afford current and former employees the right to inspect or copy records pertaining to their employment, upon reasonable request to the employer. Cal. Lab. Code §226(b)

Takeaways

Always respond to requests for access to a personnel file within a reasonable period of time. We recommend between five and ten business days. Always respond to requests that include payroll records within 21 calendar days from the date of the request.

Current employees must be allowed on site access at least once per year (more if they have been subjected to an adverse employment action), during regular business hours or during their shift.

The review should occur under the supervision of human resources professionals.

You must give the employee a reasonable amount of time to actually read through the file.

Give the employee copies of documents that he or she has signed.

Allow the employee to take notes of the content of any document.

Former employees are entitled to come on site to review the file.

Determine whether an employee would be a disruptive force before allowing him or her to return to the workplace.

If so, simply provide the employee or his or her agent with a copy of the documents that he or she signed.

If the employee demands to review his or her entire file, either allow onsite access or send a copy of the entire file. Seek counsel from your supervisor, in house counsel, or your outside employment lawyer in making this decision.

Treat all applications for access the same. If you need to deviate from standard procedures, document your reason for doing so.

Mary E. Wright is a shareholder in the San Francisco office of Ogletree Deakins, and she serves as the firm’s General Counsel.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

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