California employer responses to requests by former employees for their personnel file or employment records may have civil and criminal consequences if not properly handled. The appropriate response will, in large part, hinge on what the employee requests to inspect.

California has three principal statutes that govern employee requests to inspect personnel records:

Labor Code § 1198.5
Under Section 1198.5 present and former employees have the right to inspect personnel records maintained by the employer “related to the employee’s performance or to any grievance concerning the employee.” The employers must allow inspection or copying within thirty (30) days of the request. The inspection may be made by the present or former employee or their representative. The thirty (30) day time period can only be extended by five (5) days by mutual agreement. Under this code section performance reviews, commendation letters, disciplinary notices, corrective action plans, and complaints about the employee should be made available for inspection. The Labor Commissioner has issued some guidance on its website on what else might also be included in a “personnel file,” such as an employment application, notices of leaves of absence or vacation, education and training notices, and attendance records.

Section 1198.5 excludes from inspection, for most employers, records about a criminal offense; reference letters, and ratings, reports or records obtained before the employee’s employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination.Employers are permitted to redact the names of all non-supervisory employees mentioned in the file.

The statute does not apply if an employee (or former employee) files a lawsuit that “relates to a personnel matter” against the employer. In those circumstances the right to inspect or copy the records ceases during the pendency of the lawsuit.

If the employer does not allow a timely inspection or copying of these records, the employee may sue to force the employer to comply with the statute. Employees are entitled to a statutory penalty of $750 and an award of attorneys’ fees and costs for bringing the action. In addition, failure to comply is a criminal infraction under the Code section.

Labor Code § 226
Section 226 requires California employers to furnish employees with itemized wage statements that show nine (9) specific categories of information. These wage statements must be provided by the employer at the time employees are paid or semi-monthly.

In addition to requiring itemized wage statements, Section 226 also requires the employer to produce those wage statements to employees on request or a computer-generated report that shows all nine (9) categories of information required. Employers must make the records available to the employee within twenty-one (21) days of the request.

Failure of the employer to comply with Section 226 allows the employee to sue for a court order requiring the employer to produce the information; for a penalty of $750, and employees can recover their attorneys’ fees. A violation is also a criminal infraction and there is no exception for pending litigation.

Labor Code § 432
Section 432 requires employers to provide any document that an employee or job applicant “signs” that is related to obtaining or holding employment. There is no timeline for production in the statute and the Section does not authorize a private right of action to enforce compliance.

Documents covered by Section 432 are usually also be covered by Section 1198.5. Failure to comply with a request is a misdemeanor.

Employers do not have to produce “every” record about an employee in response to these requests. Only those documents that fall within the categories requested need to be produced. Employers should also consider other important issues when responding to these requests, such as attorney-client privilege, attorney work-product, proprietary information, and privacy issues. Therefore, these requests often require a case specific approach.

If you receive such a request the first thing you should do is pick up your telephone and call your business attorney to help you respond and assure you do not run afoul of the authorities in your response.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.