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As a practical matter, documents covered by this section can also be covered by Section 1198.5 (i.e., signed performance reviews or signed disciplinary write-ups). Failure by an employer to permit a current or former employee to inspect or copy his or her payroll records within the 21 calendar day period entitles the current or former employee to recover a penalty from the employer in a civil action before a court of competent jurisdiction. That’s right—employers can be sued (or even face criminal liability) over how they did, or did not, respond to personnel file requests. In its first change to the state statute on inspection of personnel files since the law was enacted a dozen years ago, the California Legislature passed, and Governor Jerry Brown signed on September 30, a bill that significantly changes the rights of current and former California employees, and the The Department of Labor and Industry, through the Bureau of Labor Law Compliance, administers the Inspection of Employment Records Law (Act of 1978, No.286), which authorizes an employee to inspect certain information from their own personnel files maintained by an employer.. You must file a claim while you are employed or within a reasonable time after leaving employment. A personnel record is a record that relates to performance and to an employee grievance. The right to inspect a personnel file under section 1198.5 stops once a lawsuit is filed. If any information in the supervisor's file is to be used as the basis for a timely personnel action, it must be placed in the employee's official personnel file. For example, if an employee (or former employee) files a lawsuit that “relates to a personnel matter” against the employer, then the right to inspect or copy the records ceases during the pendency of the lawsuit. To facilitate your inspection, your employer must do all of the following: Yes. A record will be maintained of all individuals and agencies requesting information from personnel files. But that does not mean that employers should ignore requests under this statute. See below for details. Prior to making records available for inspection or providing a copy of those records, the employer may redact the name of any nonsupervisory employee. Labor Code 1198.5. Inspect my personnel file Obtain a copy of my personnel file . You may have to register before you can post: click the register link above to proceed. The law specifically requires that employers allow employees and former employees access to their personnel files and records that relate to the employee’s performance or to any grievance concerning employee. By Frank Pray | Submitted On July 21, 2016. Your company receives a letter from a former employee (or a lawyer) asking to inspect the personnel file or “employment records.” What (if anything) should you do in response? Governor Jerry Brown recently signed AB 1744, AB 2674, and SB 1255, all of which take effect on January 1, 2013. About That Trade Secret Leak: It’s From Inside The Business! Why You May Want to Inspect Your Personnel File. Chapter 9.7 - PUBLIC SAFETY OFFICERS . The employer is not required to make those personnel records or a copy available at a time when the employee is actually required to render service to the employer, if the requester is the employee. Former and current employees may, at “reasonable times and intervals,” inspect their personnel files relating to their performance or to any grievance concerning the employee. Click to share this page Click for PDF Click to print this page. Although there is no specific definition for this phrase, the Division of Labor Standards Enforcement (DLSE) has opined that “reasonable times” is during the regular business hours of the office where personnel records are usually and ordinarily maintained. You should contact the Division of Labor Standards Enforcement (DLSE) and file a claim for a $750.00 penalty against your employer for failure to comply with Labor Code Section 1198.5. In California, three principal statutes govern employee requests to inspect personnel records—Labor Code §§ 1198.5, 226, and 432. This article discusses the law in California as to what must be given to the employee to inspect upon request. So the overall scope of the statute still remains an open-ended question. Employers are required to give an employee or job applicant, upon request, a copy of any instrument that the employee or applicant has signed relating to the obtaining or holding of employment. You have the right and responsibility to monitor the employee's inspection of a file to ensure that nothing is removed, destroyed or altered, and to return the file to the proper place.� To start viewing messages, select the forum that you want to visit from the selection below. See below for details. What Makes California Employment Law Different ... and How to Deal With It. Section 226 requires California employers to furnish employees with itemized wage statements that show nine (9) specific categories of information, such as all hourly rates, hours worked, gross wages earned, etc. Indeed, personnel issues often implicate attorney-client privilege, attorney work-product, proprietary information, and privacy issues. OHR reserves the right to be physically present during the inspection of any records. The inclusion of this provision strongly suggests that Section 1198.5 is not a replacement for broad civil discovery. Upon request, the employer must provide those documents. And failure to comply is a criminal infraction. Employers must also remember to protect other important rights. Click to share this page Click for PDF Click to print this page. For most employers, those files are (1) records about a criminal offense, (2) letters of reference, and (3) ratings, reports or records obtained before the employee’s employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination. California’s General Rules Relating to Inspection and Copy of Personnel Files. Employers are required by law in California to keep personnel files for every employee. Wow! The employer often attempts to use its sexual harassment investigation as both “sword and shield.” The employer cannot avoid liability by trumpeting its investigation and remediation, while at the same or work product doctrine to thwart discovery into the facts and findings of the investigation. A current or former employee may also bring an action for injunctive relief to obtain compliance, and may recover costs and reasonable attorney’s fees in such an action through the court process. A staff member is entitled to inspect or to obtain a copy of his or her own Duke or department personnel file. This article discusses the law in California as to what must be given to the employee to inspect upon request. Within the last few years, the California Legislature has amended laws related to an employee’s right to inspect personnel records, intending to ensure employees have access to those records. If this is your first visit, be sure to check out the FAQ by clicking the link above. 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