A request from a current or former employee to review their personnel file or payroll records tends to trigger an immediate panic response in most employers, especially when the request comes from an attorney on the employee’s behalf. While similar in some ways to discovery tools used during litigation (e.g., a deposition subpoena), these pre-litigation requests do not always lead to a lawsuit. They are narrower in scope and likely to fall into one or more of three basic categories, each governed by a specific section of the California Labor Code. Many times, an employer will receive a single request that covers all three categories of records. Understanding what records a current or former employee is entitled to access and the employer’s response obligations are essential to avoid penalties for noncompliance and to protect the credit union.
Payroll Records (Labor Code §226)
Labor Code §226(a) identifies the nine categories of information that must be itemized on each employee wage statement or pay stub. Subsection (b) goes on to require employers to allow current and former employees the right to inspect or receive a copy of these records upon reasonable request. And more specifically, subsection (c) provides that an employer who receives a written or oral request to inspect or receive a copy of these payroll records for a current or former employee shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request.
A “copy” of the payroll records may either be a duplicate of the itemized wage statements or paystubs provided to the employee, or a computer-generated record that accurately shows all of the required information. If the employer provides copies of the records, the actual cost of reproduction may be charged to the current or former employee.
Sometimes the request will also seek copies of related records, such as attendance records, time sheets, or expense reports. These records exceed the scope of §226 and copies are not required to be produced under this provision, although an employee may have inspection rights under other provisions of law. It is always recommended to consult with counsel if you are unsure about a particular request.
Upon receiving a written or oral request, a good practice is to confirm in writing date by which records covered by §226 will be produced so that there is no misunderstanding, especially if there is any delay between the date of the request and the date it is received. The time to comply is 21 calendar days from the date of the request.
The statute contains a penalty provision. Failure to permit a current or former employee to inspect or receive a copy of records within the specified time could subject an employer to a $750 penalty, recoverable by the current or former employee or the Labor Commissioner. An employee may also seek an injunction and recover costs and reasonable attorney’s fees. Violations of §226 can also form the basis of a claim under the Private Attorneys General Act (PAGA).
Documents Signed by the Employee (Labor Code §432)
Labor Code §432 simply states, “If an employee or applicant signs any instrument relating to the obtaining or holding of employment, he shall be given a copy of the instrument upon request.” This category of records is fairly straightforward, including applications, authorizations, acknowledgments, and anything else signed in the course of employment or applying for employment, even if it does not result in a job offer.
It’s also important to note what §432 does not specify. It does not require requests to be made in writing, so an oral request should be accepted. It also does not specify a particular time to comply. Because many of these records can be found in the personnel file, it is not uncommon to follow the 30-day response times specified for personnel files below, but this should be discussed with legal counsel and not assumed. And, unlike with payroll records, no specific penalty is identified in the statute for noncompliance.
Personnel File (Labor Code §1198.5)
Labor Code §1198.5 provides that a current or former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records maintained by the employer relating to the employee’s performance or to any grievance concerning the employee.
An employer must make those personnel records available for inspection at reasonable intervals and at reasonable times, but not later than 30 calendar days from the date the employer receives a written request, unless the current or former employee, or his or her representative, and the employer agree in writing to a later date not to exceed 35 calendar days receipt of the written request. Upon a written request, the employer shall also provide a copy of the records within the same response times and may impose a charge for same not to exceed the actual cost of reproduction. If requested by a current employee, the employer is not required to make the personnel records or a copy thereof available at a time when the employee is scheduled to be working.
A request to inspect or receive a copy of personnel records must be made in writing and can be submitted either as a written request or by completing an employer-provided form. Upon receiving a verbal request, an employer-provided form shall be made available.
For current employees, the employer must make the records available for inspection and/or provide a copy at the place where the employee reports to work or another mutually agreeable location confirmed in writing. If required to appear at another location, no loss of compensation to the employee is permitted. For former employees, the employer must make the records available for inspection and/or provide a copy at the location where the employer stores the records or another mutually agreeable location confirmed in writing. A former employee may receive a copy by mail and may be charged for actual postal expenses. (Additional restrictions apply for an employee terminated for a violation of law, or an employment-related policy, involving harassment or workplace violence.)
While the statute does not specify exactly which records must be made available, the California Labor Commissioner has indicated that categories of records generally considered to be personnel records are those used to determine an employee’s qualifications for promotion, additional compensation, disciplinary action, or termination. Examples include:
Prior to making the records available, the employer may redact the name of any nonsupervisory employee appearing. Additionally, §1198.5(h) specifically excludes certain records, including, among others:
This section also contains a penalty provision. The current or former employee or the Labor Commissioner may recover a penalty of $750 from an employer who fails to permit the current or former employee, or his or her representative, to inspect or copy personnel records within the times specified, or the time set by mutual agreement. The current or former employee may also seek an injunction to obtain compliance and recover costs and reasonable attorney’s fees. A violation of this section is also an infraction, but an employer may assert impossibility of performance as an affirmative defense in some cases.
Keep in mind that employers are required to maintain a copy of each employee’s personnel records for a period of not less than three years after termination of employment. As traditional paper personnel files have been largely replaced by electronic personnel records, maintaining a well-organized and secure system for tracking and storing personnel records, both paper and electronic, is essential to ensure a complete, accurate, and timely response to any of the above requests.
Because these records requests indicate that a current or former employee may have some concerns with regard to their employment, credit unions should take these requests seriously. Upon receipt, credit unions are encouraged to promptly reach out to legal counsel, especially when the request comes from an attorney, in order to discuss any questions or concerns and to ensure a timely and thoughtful response.
Article by Victoria L.S. Allen, partner with Moore, Brewer & Wolfe.