Why You May Want to Inspect Your Personnel File.
You may want to inspect your personnel file for multiple reasons. An employee wants to know that important records are included. Perhaps inaccurate information needs to be tagged, removed, or make subject to rebuttal. California has enacted Labor Code Section 1198.5 as a set of protections and procedures for personnel file inspection. This article lists the key parts of the law in simplified terms. Managers will sometimes place career damaging “poison pills” in a personnel file without giving any indication of dissatisfaction with employee performance. Your personnel file will be the basis for future decisions regarding pay, promotions, reassignments and transfer, and possibly layoff or termination. You may want to inspect your file in preparation for an upcoming meeting with management or to assess the fairness and truth of a performance evaluation.
Personnel File Checklist of Rights
- California employees have two personnel file rights: to request inspection and to receive a copy of records.
- A personnel record is a record that relates to performance and to an employee grievance. Personnel records by definition of the law do not include: (a) Records relating to the investigation of a possible criminal offense; (b) Letters of reference; (c) Ratings, reports, or records that were obtained prior to the employee’s employment or by identifiable examination committee members (f) Obtained in connection with a promotional examination.
- Inspection is to be at reasonable intervals and times.
- Inspection is to be no later than 30 calendar days from date employer receives a WRITTEN request.
- The employer and employee can extend the compliance date, but only by WRITTEN agreement and for no longer than 35 calendar days from the date of employer’s actual receipt of the written request for inspection.
- If there is a written request for copies, the employer is to provide copies of the personnel records to the employee [or his representative].
- The employer may charge the employee the actual costs of reproduction of the records.
- The employer and employee [or his representative] may agree, as in the inspection time limit, to extend the time for reproduction and delivery of records to a date not to exceed 35 days from the date the employer receives the request for copies.
- If the employee is currently employed, the employer is not required to make the records available during the employee’s performance of duties. [ My firms argues “performance of duties” does not mean uncompensated time. An inspection of personnel records is also for the benefit of the employer because all employers have an interest in true, accurate and complete records. Further, the employee is still controlled by the employer while conducting the inspection.]
- The request for records is to be writing, and may be on a form provided by the employer. The form may be verbally requested from the employee’s supervisor or other person known to the employee to be designated to receive the verbal “form” request.
- If the employee or his representative makes a verbal request for the written personnel file form, the employer must provide the “request form” at that time.
- Alternatively, if the employee or his representative elects, he or she can simply write out the employee’s request for the personnel file without the use of the employer-provided form.
- The employer must maintain a copy of each employee’s personnel records for a period of not less than three years after termination of employment.
- As to current employees, the employer must make a current employee’s personnel records available for inspection, and, if requested by the employee or his or her representative, provide a copy of the records at the place where the employee reports to work, or at another location agreeable to the employer and the requester. If the employee is required to inspect or receive a copy at a location other than the place where he or she reports to work, no loss of compensation to the employee is permitted. As to former employees, the employer must make a former employee’s personnel records available for inspection at the location where the employer stores the records, unless the parties mutually agree in writing to a different location.
- As to former employees, in addition to inspection, the employer must provide a copy of the records at the time and place of the inspection.
- Alternatively, a former employee may receive a copy by mail if he or she reimburses the employer for actual postal expenses.
- If the employee was fired for harassment or workplace violence, the employer can produce the file by alternative methods: a) permit the inspection at a location other than the workplace that is within a reasonable driving distance of the former employee’s residence or b) provide a copy of the personnel records by mail.
- An employer is required to comply with only one request per year by a former employee to inspect or receive a copy of his or her personnel records.
- A person who is a representative of the employee for purposes of requesting inspection or copies is a person designated in writing by the employee to “inspect or receive a copy” of those records.
- The employer may take reasonable steps to verify the identity of a current or former employee or his or her authorized representative.
- An employer may designate the person to whom a request for inspection and/or copying is made.
- Prior to making records available for inspection or providing of the personnel file, the employer may redact [delete or black out] the name of any nonsupervisory employee contained in the file.
- Records specifically excluded from the documents an employer must make available are: (a) Records relating to the investigation of a possible criminal offense; (b) Letters of reference; (c) Ratings, reports, or records that were: (A) obtained prior to the employee’s employment or (B) prepared by identifiable examination committee members or (C) obtained in connection with a promotional examination.
- The right to inspect a personnel file is controlled by other laws for certain categories of employees: (A) Some Public Safety Officers (B) Some government agency employees.
- If the employer delays or fails to produce the file, the current or former employee or the Labor Commissioner may recover a penalty of seven hundred fifty dollars ($750) from the employer.
- A current or former employee may also bring for a court order [injunction] to compel the employer to produce the file as required by law.
- If the employee obtains the order compelling production, he or she may recover costs and reasonable attorney’s fees in such an action.
- If a current or former employee files a lawsuit that “relates to a personnel matter,” then the rights to inspect the file are pre-empted and replaced by the subpoena procedure available through the lawsuit.
- An employer is not required to comply with more than 50 requests to inspect and receive a copy of personnel records filed by a representative or representatives of employees in one calendar month.
- If the employee is a union member, and if the collective bargaining agreement provides for a specific means to obtain employee records, then the union agreement will trump the general statutory procedures, but only if the union agreement includes provisions that relate to:
- (a) wages, hours of work, and working conditions of employees.
- (b) A procedure for the inspection and copying of personnel records.
- (c) Premium wage rates for all overtime hours worked.
- (d) A regular rate of pay of not less than 30 percent more than the state minimum wage rate.
Personnel File Inspection Action Steps
Here is a checklist of actions you can take both during after the inspection:
- List what’s missing. Are there documents you know should be in the file? Did you expect to see a positive performance evaluation or mid-year review, or perhaps a recognition for reaching a performance milestone?
- List what’s surprising. Has an important document been removed or altered? Is what you’ve been told about your performance or opportunity contradicted by what is in the file?
- Identify what is inaccurate or untrue.
- Look for hard data that you would expect to be central to your performance evaluation. For example, sales completed, projects on schedule, new customers signed. If the data is not in the file, ask that it be added. Why is this data part of a “personnel file?” This firm argues that the data directly relates to your work performance as a key measure. By the way, a “file” in the 21st century is digital and cloud based. There is no necessary storage limit or location for a file. A “personnel file” is defined by its content, not its labeling.
- Inspect you file regularly, just as you might get an annual checkup. You’ll find the record or summary you keep invaluable as the years go by, as documents can be changed or removed with time, especially if there is a campaign to get rid of you. Also, employers will cite a history of alleged poor performance to hide an illegal motive to layoff or fire. You can rebut those events much more easily as they occur instead of covering everything in the final days of your employment.
- Request to add key documents to the file. These can be missing evaluations, needed corrections, and your written rebuttal to negative evaluations. [Our firm argues that inasmuch as your rebuttal concerns the terms and conditions of employment, it is a defined “personnel record” that must be included in the file.]
- Take steps to address take the issues you discover after inspection. Go up the chain of command. Follow any company policy covering personnel record. Keep a record of your efforts by date, with whom you communicated, and the outcome. Later, this approach will support your case that a disciplinary action is unwarranted.
- Ask that positive statements about performance be included in the records. A “letter of recommendation may be excluded by statute, but our firm argues that many positive communications, often internal, are not “recommendations,” but evaluations.
- Time clock records and pay records are part of your personnel file, where ever they may be kept. Ask to see them if you believe your time or pay is not according to law.
- Ask to see any file materials not labeled as “personnel files” but kept as so-called “private” files by human resource employees or managers. Our firm argues that content and use of the record determines whether it is part of the “personnel file.”
- Insist on receiving copies of all your signed employment documents. These will include: a) arbitration agreements; b) trade secret and confidentiality agreements; c) completion of training documents; d) notifications and acknowledgements of receipt of handbooks or electronically stored policies; e) enrollment in insurance, dental, and vision plans; f) enrollment in long term or short term disability plans; f) participation in 401K or other retirement plan; g) any signed evaluations or warnings.
- Do a basic index of the documents in the file. You may later want to check what you receive as copies against your index. As you are allowed to receive copies, it follows you are also allowed to keep copies. That means you can maintain the digital or paper copies at your home or other off-site location. You should do so.
Conclusions About Personnel Files
In large companies decision makers are often well up stream from your position. They may have little direct interaction with you. They will depend largely on what they find in your personnel file to decide your economic future. Inspecting your personnel file should be viewed as you might view copies of your credit report or medical records. Keeping these records as your copies may prove very useful during your employment to address an unfair evaluation, denial of bonus or pay increase, or denial of promotion. Likewise, if you are fired for an illegal reason, the records you keep can be used to rebut the “official” reason of poor performance or misconduct. Current employees can inspect their personnel files at regular reasonable intervals, and prior employees can request their personnel file once each year. They should do so.
If you would like a free personnel file request form used by this office, contact us at 949-251-1006 and reference this free offer when you call.