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

An employment records request refers to your right to ask an employer, or former employer, for the personnel records that it keeps or has kept regarding your employment. Personnel records include such records as

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

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

You 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 you.

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 you the right to look at your personnel files. Most states, though, give you this right under state statutes.

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

• 1. Do I have a right to my personnel file?
• 2. When can I make this request?
• 3. How do I 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 my personnel file?

1. Do I have a right to my personnel file?

California Labor Code Section 1198.5a is the state law that sets forth your 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

You must make your request in writing.² Note, however, that a written request is not necessary when you seek 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 your right to request items in a personnel file often includes the right to examine the following:

• records relating to your employment history,
• an application for employment,
• payroll authorization forms,
• warnings or notices of commendation,
• notices of a disciplinary action,
• records relating to your 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 your 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 your 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 I make this request?

You 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 you 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. You 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.

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

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

• address or send the “writing” to human resources or a supervisor,
• include your 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 you.¹²

You can also file an injunction against the employer. An injunction, if successful, compels the employer to comply with the request. If you file for injunctive relief, you 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:

• you request any instrument that you 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 my personnel file?

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

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

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