What are an Employee's Rights to Inspect/Copy their Personnel File?

Changes to and Expansion of Employer’s Obligations to Permit Current/Former Employees’ Right to Inspect and Copy Personnel Files

One of the issues addressed by the California Legislature in its most recent legislative session involved  the obligations imposed on employers with respect to a current or former employee’s written request to review their personnel file.

In sum, the requirements imposed on the employer’s obligation to allow the inspection of an employee’s personnel records by the employee or his or her representative were expanded.  The amendments to 1198.5 of the Labor Code made the following changes of note

  1. Employers now must maintain an employee’s personnel records for a minimum of 3 years from the date of termination. 
  2. Personnel records must be made available to current and former employees for inspection within 30 calendar, not business, days from the date the employer receives a written request. 
  3. The personnel records may be inspected by the employee or by his or her representative.  (Employers can and should require a written authorization signed by the employee permitting a representative on behalf of the employee to inspect the employee’s personnel records.  The written authorization should specifically identify by name the representative which should be confirmed through the production of some type of identification at the time and before the representative reviews the personnel file.)
  4. Upon written request, an employer must provide the employee a copy of his or her personnel records at a charge not to exceed the actual cost of copying.  An employer is able, prior to making the records available, to redact the name of any non-supervisorial employee contained in the records.
  5. With respect to a former employee, employers are required to comply with only one request per year to inspect or receive a copy of the former employee’s personnel file.
  6. If a current or former employee files a lawsuit in a personnel matter against an employer, the right to inspect and copy personnel records ceases during the pendency of the lawsuit.  (This means the current or former employee would have to formally request his or her personnel records through appropriate discovery procedures in the litigation.)
  7. The amendments to 1198.5 do not require an employer to produce records relating to the investigation of a possible criminal offense, letters of reference, ratings, reports or records obtained prior to the employee’s employment, prepared by identifiable examination committee members and obtained in connection with a promotional examination.
  8. Violations by the employer entitle the employee or the Labor Commissioner to recover a penalty of $750 from the employer and permit the current or former employee to obtain injunctive relief as well as attorneys’ fees.

Employers are well advised to take seriously any written request from a current or former employee, or their representative, to review and/or obtain a copy of their personnel file.  It is not clear if the amendment to Labor Code §1198.5 now require an employer to produce an entire copy of an employee’s personnel file to the current or former employee whereas §432 of the Labor Code requires an employer to provide an employee with any document the employee signed.  Employers need to insure a timely and thorough response to written requests from employees to review his/her personnel file, and review carefully whether it is easier to permit an employee to obtain a complete copy of his or her personnel file as opposed to only documents he or she signed.