ContactLocationsPrivacy Policy

 

EmploymentUpdates and News

December 2012

Employers’ Obligations to Provide Employees with Access to Personnel Records Expand Under New Law

By Andrea G. Musicant, Esq.

Amendments to California Labor Code section 226 take effect on January 1, 2013 AB 2674. AB 2674 creates new obligations for employers when responding to an employee’s request to review or obtain a copy of his/her personnel file.

 

Pay Records

AB 2674 amends Section 226’s recordkeeping and inspection provisions. When asked to provide a “copy” of pay records an employer may provide a duplicate of the itemized statement originally given to employees or a computer-generated record that accurately shows the same information as the itemized statements provided to employees. An employer may not provide a computer printout that fails to provide the information required to be included on paystubs, i.e. gross pay, deductions taken, net pay, hours worked, the currently hourly rate of pay for regular and overtime hours worked.

 

Personnel Records

Currently, California Labor Code Section 1198.5 requires employers to permit both current and former employees to inspect their personnel files or obtain copies of the files. Many employers only provide copies of signed documents from an employee’s personnel file and then permit the employee to set up an appointment to review the entire file at the place of employment. An employer may no longer limit review of personnel files in this manner.

Employers must now comply with the following changes to Labor Code section 1198.5:

Written Request: An employee must make a request to inspect or copy his/her personnel file in writing. Employers may designate a person to whom requests should be made, and must provide a form to be used in making the request.

Response Time: Previously employers needed to provide access to the personnel records “within a reasonable time” after a request was made. The new law requires employers to provide a copy of the requested personnel file or make the entire file available for inspection within 30 calendar days. The employee and employer may agree to expand the time frame, provided it does not exceed 35 days from the date the employer receives the written request.

Requesting Party: The employee or an authorized representative, including the employee’s attorney, may now request a copy of the personnel file or inspect an employee’s personnel file.

Retention of Records: Employers must maintain copies of an employee’s personnel records for at least three years following an employee’s termination.

Inspection Location: Current employees must be provided an opportunity to inspect or make copies of their personnel records at their regular place of work or an agreed upon location. If the employee is required to inspect or copy the file at a location other than his/her regular place of work, there can be no loss of compensation to the employee.

Former employees must be permitted to inspect or make a copy of their personnel records where the records are stored, or an agreed upon location. Former employees may receive a copy by mail provided the employee reimburses their former employer for actual postal expenses. An employer is only required to comply with one inspection and copying request per year from former employees.

If an employee was terminated for a violation of law or for violating an employment-related policy involving harassment or workplace violence, an employer may provide a copy or inspection of the personnel files by: 1) making the file available at a location within a reasonable driving distance of the former employee’s residence; or 2) providing a copy by mail.

Permitted Redactions: Employers are permitted to redact the names of any nonsupervisory employees whose names are contained in the records prior to permitting inspection or copying.

Penalties: A failure to comply with a request to inspect a copy will result in a $750 penalty as well as a claim for injunctive relief and attorney’s fees.

Filing of a Lawsuit: If a current or former employee files a lawsuit against an employer relating to a personnel matter, the right to inspect or copy the personnel records ceases during the pendency of the lawsuit.

_________

Andrea G. Musicant is a San Diego-based member of Klinedinst's Employment Law practice group. She provides regular employment training and counsel for a wide range of clients throughout California. Please contact Ms. Musicant at amusicant@klinedinstlaw.com if you have any questions concerning this article or any other employment issues.

Klinedinst Employment Law Update

 


The opinions expressed in this employment update are general in nature, and are not meant to provide specific legal advice. For more information, please contact a Klinedinst attorney. No attorney/client privilege is created or assumed by reading this newsletter.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Want to Receive California Employment Law Updates As Soon As They're Published?

 

 

 


Home | About | News | Practice Areas | Profiles | Careers | Locations | Privacy | Contact

Friend Klinedinst on Facebook
Follow Klinedinst on LinkedIn
Follow Klinedinst on Twitter

© 2012 KLINEDINST PC. All rights reserved.