Legal news and tips for employees, by Law Office of Eugene Lee

Get Your Personnel File & Payroll Records Now

folder1.jpgDid 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.

On January 1, 2013, new laws went into effect which greatly expanded rights of access to personnel records. California Labor Code Section 1198.5 was amended and now provides:

  • 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].

If you experience any problems, contact an attorney immediately.
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7 Responses to Get Your Personnel File & Payroll Records Now

  1. Creative article – For my two cents , if someone needs a CA Statutory Form Power of Attorney , We filled out a sample version here http://goo.gl/A3gWnw

  2. Are employers required to keep a personnel file for employees?? What if they do not? For example, in a potential 1198.5 violation, what happens if the employer does not have a personnel file for the employee/former employee that is requesting to inspect his/her personnel file? Is the only solution/remedy the $750 penalty?

  3. can an employer send personnel records through email or does it always have to be sent through mail? Can an employer also deny the employee a “copy” of personnel records and have them “inspect” them instead?

  4. What does the law mean by cost of copies and no more? (Section 1198.5(b).) Doe this mean the employer can only charge for the cost of the paper/ink? or that they can charge for their time?

  5. This is more of a question than a comment. Just how far back in payrolls records can you ask for? I’ve been with my employer for about 20 years now, can I ask for complete copies of payroll or only so many years back?

  6. […] Whenever it comes to contracts, the answer is always the same: it depends on what the contract says. A contract is a contract is a contract. Neither you nor your employer can breach a contract without facing the consequences. That is, unless the contract says it’s ok. This is why it is so important that employees keep copies of any contracts they have signed with their employers. If you don’t have a copy of your contract, your employer is required by law to give you one if you request it. To see how, go to this post. […]

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