Employment Records Request in California – How do I make one?

An employment records request refers to an employee’s right to ask an employer, or former employer, for the personnel records that it keeps or has kept regarding his/her employment. Personnel records include such records as

• applications for employment,
• payroll records, and
• performance evaluations.

Subject employee records generally do not include letters of reference and documents relating to the investigation of a criminal offense (such as embezzlement).

An employee can exercise an employment records request at any time for almost any reason. Many requests, though, are made in relation to a claim of wrongdoing by the company, such as

• age discrimination,
• race discrimination,
• wrongful termination, or
• the violation of a wage and hour law.

Most requests for personnel records have to be in writing and they can be made via:

• letter,
• e-mail, or
• fax.

Requests for payroll records can be done orally.

An employer that fails to comply with a records request receives a fine. The fine is:

• in the amount of $750, and
• gets paid to the employee that made the request.

The failure is also considered an infraction under the law, which is a charge different than a misdemeanor or a felony.

Note that there are no federal laws that give employees the right to look at their personnel files. Most states, though, give employees this right under state statutes.

Our California labor and employment lawyers will highlight the following in this article:

• 1. Do employees have a right to their personnel file?
• 2. When can an employee make this request?
• 3. How does a person make a records request?
• 4. What are the penalties if an employer does not comply?
• 5. Is there a federal law regarding the inspection of an employee’s personnel file?

1. Do employees have a right to their personnel file?

California Labor Code Section 1198.5a is the state law that sets forth an employee’s basic rights regarding record requests.

That statute reads:

“Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee.”¹

A requesting employee must make his/her request in writing.² Note, however, that a written request is not necessary when an employee seeks certain payroll records. An oral request in these cases is sufficient.³

State laws say that employers must respond to record requests within 30 days after the date it receives the request.⁴ This is calendar days as opposed to business days.

As to a request for payroll records, employers must provide a response within 21 days.⁵

California’s Labor Code does not specifically define the term “personnel records.” But an employee’s right to request items in a personnel file often include the right to examine the following:

• records relating to an employee’s employment history,
• an application for employment,
• payroll authorization forms,
• warnings or notices of commendation,
• notices of a disciplinary action,
• records relating to an employee’s qualifications for additional compensation,
• attendance records,
• performance evaluations,
• education records,
• medical records if related to an employment situation (such as an injury causing a worker’s compensation claim) and
• notices of layoff and leaves of absence.

An employer must redact any confidential information (such as a person’s social security number) in these records prior to an employer’s examination of the record.

State law says that the above rules regarding requests do not apply to:

• records relating to the investigation of a possible criminal offense,
• letters of reference,⁶ and
• ratings, reports, or records that were:
  • obtained prior to the employee’s employment.
  • prepared by identifiable examination committee members.
  • obtained in connection with a promotional examination.⁷

Note that employers must maintain a copy of your personnel file for:

• a period of not less than three years after termination of employment, or
• a reasonable period beyond that time.⁸

2. When can an employee make this request?

An employee can exercise an employment records request at any time for almost any reason.

However, many requests are made in relation to a (potential) lawsuit or a claim of wrongdoing, including claims of:

• age discrimination,
• coworker harassment,
• disability discrimination,
• teacher misconduct,⁹
• gender discrimination,
• defamation,¹⁰
• sexual harassment,
• preventing a promotion or the failure to promote,¹¹
• supervisor harassment,
• bullying, and
• wrongful termination.

3. What are some practical tips for a records request?

There are a few key practical tips that employees should consider when drafting a request for employment records.

The “written” request can take the form of:

• a letter,
• an email, or
• fax.

The request should be brief (a few short paragraphs) and straightforward. Employees have a right to make this request. This means it does not have to explain in detail all of the reasons for the records sought. Just a few will suffice.

Employees have to keep a professional tone in asking for records. Mean or angry language should get excluded.

Further, it is a good idea for the employee to do the following:

• address or send the “writing” to human resources or a supervisor,
• include his/her job title,
• clearly state the specific document(s) being sought, and
• keep a copy of the request.

4. What are the penalties if an employer does not comply?

An employer that fails to comply with a records request under Section 1198.5 is subject to a fine. The fine is:

• in the amount of $750, and
• gets paid to the employee that made the request.¹²

A current or former employee can also file an injunction against the employer. An injunction, if successful, compels the employer to comply with the request. If a party does file for injunctive relief, he/she can recover:

• any legal costs incurred, and
• reasonable attorney’s fee.¹³

A business’ violation of LC 1198.5 is an infraction. Note, though, that it is a misdemeanor offense for a business if:

• an employee requests any instrument that he/she signed relating to the obtaining or holding of employment, and
• the business fails to comply with the request.¹⁴

5. Is there a federal law regarding the inspection of an employee’s personnel file?

There are no federal laws in the United States that give employees a right to look at their personnel files.

Most states, though, give employees this right under state statutes.

For additional help…

For additional guidance or to discuss your case with a labor and employment lawyer, we invite you to contact our law firm at Shouse Law Group. We provide a free consultation and legal advice you can trust.

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