By: Alden J. Parker
Governor Brown recently signed into law AB 2674, imposing new requirements on how and when employers respond to employees' requests for inspection and copying of their personnel files.
Employers have long had a duty to permit employees the right to inspect, "within a reasonable time" after the request, their personnel records "relating to the employee's performance or to any grievance concerning the employee." These requests are sometimes made by current employers. However, more often than not they are made by a former employee. Effective January 1, 2013, AB 2674 makes the following changes to Labor Code § 1198.5:
1. The request can be made by an employee's "representative," which is a person authorized in writing by the employee. An employer need not respond to more than 50 requests by a "representative" in one calendar month. The language regarding “representative” is code for Plaintiff’s attorney.
2. The request must be in writing. Employers also must provide a request form for employees' use, but employees are not required to use the form.
3. Employers must provide a copy of personnel records or make them available for inspection within 30 calendar days of a written request. The parties can agree to extend this deadline but only up to five additional days.
4. Employers may redact the names of any nonsupervisory employees.
5. The requirements do not apply to (1) records relating to the investigation of a possible criminal offense; (2) letters of reference; (3) ratings, reports, or records that were obtained prior to the employee's employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination.
6. Employers must maintain copies of personnel records for a minimum of three years after termination.
7. For employees currently employed with the employer, inspection or copies must be provided at the place where the employee reports to work or at another mutually agreeable location. If the employee is required to go to a different location, no loss of compensation to the employee is permitted.
8. For employees no longer employed with the employer, inspection or copies must be provided at the location where the employer stores the records, unless the parties mutually agree in writing to a different location. Former employees may receive a copy by mail if they reimburse the employer for actual postal expenses. Employers are required to respond to only one request per year from each former employee.
9. For former employees who were terminated for a violation of law or policy involving harassment or workplace violence, employers may comply by (i) making the personnel records available to the former employee for inspection at a location other than the workplace that is within a reasonable driving distance of the former employee's residence or (ii) providing a copy by mail.
10. If a current or former employee files a lawsuit that relates to a personnel matter, the right to inspect or copy files ceases during the pendency of the lawsuit.
11. The requirements do not apply to employees covered by a collective bargaining agreement that provides for (1) wages, hours of work, and working conditions; (2) a procedure for the inspection and copying of personnel records; (3) premium wage rates for all overtime hours worked; and (4) a regular rate of pay of not less than 30% more than the state minimum wage rate.
12. An employer that fails to comply is liable to the employee or the Labor Commissioner for a penalty of $750, plus injunctive relief and attorneys' fees. An employer may assert impossibility of performance as an affirmative defense to an alleged violation.
In addition to the amendment of Labor Code § 1198.5, AB 2674 amends Labor Code § 226(a) to require that, when an employee requests copies of his or her itemized wage statements, the employer must produce a copy that is actually a duplicate of the original itemized statement or a computer-generated record that contains all of the information required by Section 226(a).
What Should California Employers Do Now?
California employers should designate an individual to whom requests should be made and put in place processes to ensure compliance by tracking the dates when requests are made. Employers must also now create a request form for inspection or a copy of personnel records. To ensure compliance, employers will want to track the dates on which requests are made, track the number of requests made by an employee or their representatives, and review retention policies to make sure that personnel records are maintained for three years after termination.
Regarding itemized wage statements, California Employers must ensure they can reproduce wage statements that are exact duplicates of those provided to employees or else provide wage statements that contain all of the information required by Section 226(a). Also, remember that for wage records, unlike personnel records, an employer must provide copies of or an opportunity to inspect wage-related records within 21 days of a written or oral request.