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Employee Access to Personnel Files
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Overview: Employees and former employees have the right to access their personnel files. It is important that you store and maintain personnel records in a manner that is required by law. A law that became effective in 2013 greatly expands California law relating to inspection of personnel files. The law amended Labor Code section 1198.5 to clarify that both current and former employees have the right to inspect and copy contents of personnel files. Under prior law, it was unclear what the rights of former employees were and there were conflicting decisions about former employees’ rights to access. Under prior law, an employee also did not have an absolute right to copy the entire personnel file, but only documents that he or she had signed relating to obtaining and holding employment. The new law allows current and former employees, or their representatives, to have a copy of the contents of the file if they pay the actual costs of copying. The law also specifically details where and how the records must be made available, including copies, what information can be excluded or redacted from the file, and penalties for failure to comply. The law lists employee rights and employer obligations.
Requesting Inspection and Copies of Files: The employer may designate a representative to handle requests for access to personnel records. Any request to inspect or copy personnel records must be made in writing by the current or former employee, or his or her representative. Employers must develop and provide a written form that employees can use to request access to, and a copy of, records in the personnel file. The written form must be made available to the employee (or representative) upon verbal request from the employee to either the employee’s supervisor or an individual that the employer has designated to receive a verbal request for the form. While the law states that the employer should make records available at reasonable intervals and at reasonable times, the law also now sets specific deadlines for allowing inspection or producing copies:
Exceptions to an Employee’s Right to Access Personnel Files: While the statute does not define a personnel file or indicate what specifically should be included in it, employers have the right to redact the name of any non-supervisory employee from the records being copied or produced. An employee’s right to view his/her personnel file does not apply to:
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Inspecting Files: Every current and former employee has the right to inspect the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee. Current and former employees have the right to not only inspect the file but also to receive a copy of the contents. If a copy is requested, the employee or former employee can be charged the actual cost of copying. Employees have the right to designate a representative to conduct the inspection of the file or receive a copy of the file. The representative must be authorized in writing by the employee to inspect or receive a copy of the current or former employee’s personnel file Employers may take reasonable steps to verify the identity of a current or former employee or his or her authorized representative. For example, the employer may request a driver’s license or valid photo ID.
Limits to Requests: An employer is not required to comply with more than 50 requests under this statute to inspect and receive a copy of personnel records filed by a representative(s) of employees in one calendar month. An employer is not required to comply with more than one request per year by a former employee to inspect or receive a copy of his or her personnel records. If an employee or former employee files a lawsuit that relates to a personnel matter against the employer or former employer, the right to inspect or copy personnel records ceases while the lawsuit is pending.
Examples of Documents Contained in a Personnel File: The question often arises as to what should be kept in an employee's personnel file. Some information should be kept separate from the personnel file. California law mandates that employers establish appropriate procedures to ensure all employee medical records and information will remain confidential and will be protected from unauthorized use and disclosure. One appropriate procedure for ensuring confidentiality is to establish a second file for each employee for information protected by privacy laws. This confidential file may contain medical records and any other sensitive information, such as private financial records. But aside from these type of privacy limitations, the decision regarding what information to place in an employee's personnel file depends on your company's practices and should take into consideration who has access to the file. The following types of information may be included in personnel files:
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