Did you know you have a legal right to inspect and get a copy of your personnel and payroll records? If not, you’re not alone. But more important, what are you waiting for? All employees, former and current, should check their personnel file and payroll records periodically to guard against unfair negative evaluations or warning letters, or mistakes in paychecks, withholdings or vacation accruals. It’s also important to do if you’re thinking about making a complaint or filing a lawsuit.
- Who Can Request Records? Current and former employees can. And now so can their representatives (such as their lawyers) on their behalf. Section 1198.5(a). There are a couple of important condition however. You cannot make a request once you have filed a lawsuit that “relates to a personnel matter” (i.e., a lawsuit where your personnel records would be “relevant to the lawsuit”) against the employer. You would have to wait until the lawsuit concluded (or is appealed). Section 1198.5(n), (o). Also, if you are covered by a collective bargaining agreement that provides, among other things, for procedures to inspect and copy your personnel records, then that agreement trumps the California Labor Code. Section 1198.5(q).
- What Can Be Requested? Requesters can ask to “inspect”, and/or to be provided a “copy” of, any and all personnel records that the employer maintains relating to the employee’s performance or any grievance concerning that employee. Section 1198.5(a). Employers are required to keep a copy of an employee’s personnel records up to 3 years after termination of employment. Section 1198.5(c)(1).
- How Can the Request be Made? Current and former employees, and their representatives (i.e., lawyers) can either submit a request in writing, or use an employer-provided request form if there is one. In case of the latter, the employer must provide the form upon “verbal request”. Section 1198.5(c). The employer can designate a person t whom all such requests must be made. Section 1198.5(f). Make your request by mailing a written letter to your employer via certified mail, return receipt requested (ask your local post office about this – it only costs a few dollars). You can also submit your request by fax or email. These methods prevents the employer from later claiming they never got your request.
- What Doesn’t Have to Be Produced? Employers are permitted to “redact” (i.e., black out) the names of any non-supervisory employees in the records. Section 1198.5(g). Employers also aren’t required to produce the following: Records relating to the investigation of a possible criminal offense. Letters of reference. Ratings, reports, or records that were (a) Obtained prior to the employee’s employment; (b) Prepared by identifiable examination committee members; or (c) Obtained in connection with a promotional examination.
- What Will It Cost? If copies are requested, the employer may charge the requester for the actual cost of the copies, but no more. Section 1198.5(b). If the requester and the employer agree to mailing of the copies, the employer can charge for “actual postal expenses”. Section 1198.5(c)(3)(A).
- When Must Records Be Produced? Employers must make requested records available for inspection by employees and their representatives, or supply copies if that is requested, “at reasonable intervals and at reasonable times”, but not later than 30 calendar days from the date the employer received the written request. The employer and the requester can agree in writing to extend that deadline up to 35 calendar days after date of receipt of the request (but no later than that). Section 1198.5(b). If the requester is a current employee, the employer is not required to produce requested records to the employee during the employee’s work hours. Section 1198.5(c).
- How Often Can You Request Records? If you’re a former employee, you can make one request per year. Section 1198.5(d).
- What Happens if the Employer Doesn’t Comply? The employer could be subject to a penalty of $750. You can also bring a lawsuit for “injunctive relief” (where the Court commands the employer to comply with the California Labor Code) in which case you can recover your attorney fees and costs. Section 1198.5(k), (l).
Note, the employer and an “recognized employee organization” (i.e., union) may “agree” to additional rules beyond what the California Labor Code provides. Section 1198.5(j).
Here’s a sample request letter (you should change the tone and wording to fit your circumstances – for example in some case, a less lawyerly tone might be better):
I am a [former/current] employee of [Employer]. I am writing to request a copy of all of my personnel records under California Labor Code Sections 226(c), 432 and 1198.5. Please mail them to me at the below address within 30 days of your receipt of this letter: [address].