We frequently receive phone calls from employers asking their responsibilities under the ever-expanding California laws regarding employee personnel files. Below is a summary of the top five (5) most frequent questions we are asked by employers:
- Does an Employee or Former Employee Have Right to Inspect Their Personnel File?
Yes, both current and former employees have the right to inspect their personnel file. A current employee has the right to inspect their personnel file “at [a] reasonable time and intervals.” There is no specific definition as to what constitutes “at [a] reasonable time and intervals.” However, the California Division of Labor Standards Enforcement has interpreted this clause to mean once a year, unless there is reason to believe the file has been altered in an adverse manner or is pertinent to an ongoing investigation (in which case a more frequent review may be permitted).
Likewise, a former employee has a right to inspect their personnel file.
The request by both former and current employees should be made in writing.
- How Long After Someone Leaves Do I Have to Maintain Their Personnel File?
The statute requires a three (3) year minimum to maintain records. However, a more prudent practice would be to keep said records for up to six (6) years to ensure that the records are not needed for any other purpose.
- Do I Have to Let a Current Employee Inspect Their Personnel File While They are “On The Clock”?
Generally, no. You can require that an employee inspect their records during their own time. However, if you require an employee to travel to another location to review their personnel file, then you DO need to let them do so during a time that they would otherwise be required to perform services for you, and you must compensate that employee at their regular rate of pay. You could also be required to provide the employee their travel expenses.
- Do I Have to Let the Employee See Everything?
No. By law, the employee’s right to inspect their personnel files does not include:
Letters of reference;
Records relating to investigations of potential criminal activity;
Ratings, reports or records that were obtained prior to the employee’s employment with your company, prepared by identifiable committee members or obtained in connection with a promotional examination.
- What Happens if I Refuse to Let Someone View Their Personnel File?
The employee or former employee will have the right to file a claim with the California Division of Labor Standards Enforcement and seek a penalty against you in the amount of $750.00. Also, an employee may bring a lawsuit against you for injunctive relief (i.e. an order that you produce the personnel file), and obtain reimbursement for his/her costs and reasonable attorneys’ fees.
The questions answered in this article cover only a portion of the employer’s obligations with regards to personnel files. For that reason, given the complexities of an employer’s obligation to maintain its current and former employees’ personnel files, it is imperative that your staff is properly educated and trained as to what they are required to do.
Sarah A. Ornelas and Claudia Aceves are attorneys at Borton Petrini, LLP who represent employers throughout Central California. They can be reached at firstname.lastname@example.org, email@example.com or 209-576-1701.
Legal Disclaimer: This article is designed for general information only. The information presented should not be construed to be formal legal advice, nor the formation of a lawyer/client relationship.