California Employment Law Refresher: Responding to Requests for Employment Records
The request arrives in the mail or inbox. A former employee, or the employee’s representative, is requesting employment records. The request arrives on its own or, perhaps, along with a settlement demand letter from the employee’s attorney. What does an employer do?
A request for employment records is not always related to a settlement demand or potential litigation. Current and former employees may request their employment records for a variety of reasons, many unrelated specifically to the employer. It may be that the employee is seeking a loan or housing and needs copies of wage statements to demonstrate an ability to pay. It may be that the employee is seeking a new job or admission to a university and believes there may be letters of commendation in the employee’s personnel file that may assist in acquiring that job or degree. There may be numerous reasons, unrelated to potential litigation, that an employee makes this request. Whatever the reason, California requires employers to provide certain documents within specific time periods. In doing so, however, employers must understand which records are being requested and are required to be produced, may ensure the person making the request has the authority to receive the records, should produce records without including private or confidential information, and must respond in a timely manner.
Payroll Records
Labor Code section 226 requires employers to provide employees with itemized wage statements concurrently with each payment of wages. The wage statements must include specific information, including: (1) gross wages earned, (2) total hours worked for nonexempt employees (3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis, (4) all deductions (5) net wages earned, (6) the inclusive dates of the pay period, (7) the name of the employee and only the last four digits of their social security number or an employee identification number other than a social security number, (8) the name and address of the employer, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. *Additional information must also be included pursuant to other Labor Code sections, such as the amount of available paid sick leave (or paid time off if provided in lieu of sick leave) if this information is not provided in a separate writing with the payment of wages. *
Labor Code section 226 further provides employees with the right to inspect or receive a copy of records pertaining to their employment, and specifically the information identified above, upon reasonable request to the employer. The employer may take reasonable steps to ensure the identity of a current or former employee. If the employer provides copies of the records, the actual cost of reproduction may be charged to the current or former employee. An employer who receives such a request must comply “soon as practicable, but no later than 21 calendar days from the date of the request.” An employer’s failure to do so within this time period “entitles the current or former employee or the Labor Commissioner to recover a seven-hundred-fifty-dollar ($750) penalty from the employer.”
Effectively, upon request, employers must provide employees with copies of wage statements or a computer-generated record that accurately shows all of the information required to be included on the wage statement, or allow employees to inspect these records, within 21 days of the request. Failure to do so may result in a $750 penalty.
Personnel Records
Labor Code section 1198.5 requires employers to make the contents of employees’ personnel records available for inspection or provide a copy of those records to current or former employees, or their representative, at reasonable intervals and at reasonable times, but not later than 30 calendar days from the date the employer receives a written request (extended to 35 days upon agreement).
Although the statute does not define what constitutes “personnel records,” these records typically include applications for employment, resumes, offer letters, Wage Theft Protection Act notices, employee handbook and policy acknowledgements forms, corrective action forms, performance evaluations, signed job descriptions, promotion and pay increase records, and training records. Certain records, such as medical records, investigation files, benefit records, and immigration documentation should be maintained separately from the personnel file and kept in their own confidential files. In addition, employers are not required to provide access to: (1) records relating to the investigation of a possible criminal offense; (2) letters of reference; or (3) 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.
Employers may take reasonable steps to verify the identity of current or former employees or their authorized representatives before providing access to personnel records. If the employer provides copies of the records, the actual cost of reproduction may be charged.
Employers are not required to comply with more than one request per year by each former employee to inspect or receive personnel records, nor are they required to comply with more than 50 requests filed by a representative or representatives of employees in one calendar month. Once a current or former employee files a lawsuit that relates to a personnel matter against the employer, the right of the employee (or the employee’s representative) to inspect or copy personnel records ceases during the pendency of the lawsuit. Such requests may, instead, be made through the discovery process. Finally, Labor Code section 1198.5 does not apply for employees covered by a valid collective bargaining agreement that includes specific provisions regarding the wages/hours of work/working conditions of employees, a procedure for the inspection/copying of personnel records, premium wage rates for all overtime hours worked, and a regular rate of pay amounting to at least 30% more than the state minimum wage.
If Labor Code section 1198.5 applies and an employer fails to permit a current or former employee, or his or her representative, to inspect or copy personnel records in a timely manner, the current or former employee or the Labor Commissioner may recover a penalty of seven hundred fifty dollars ($750) from the employer. Current and former employees may also bring an action for injunctive relief and may recover costs and reasonable attorney’s fees in such an action.
Effectively, when Labor Code section 1198.5 applies (see exceptions above), employers must provide copies of personnel records, or allow employees to inspect these records, within 21 days of the employee’s request. Failure to do so may result in a $750 penalty, injunctive relief, and potentially an award of attorneys’ fees and costs.
Documents Signed by the Employee
Upon request, Labor Code section 432 requires employers to provide employees and applicants with copies of “instruments” they sign “relating to the obtaining or holding of employment.” Effectively, employers must provide employees with copies of documents they signed related to their employment or application for employment. Labor Code section 432 does not provide a deadline to do so, nor does it include a specific penalty provision, though the penalty applicable under Labor Code section 1198.5 would apply to any records that satisfy both statutes.
Other Records
Various provisions of the Industrial Welfare Commission (IWC) Wage Orders require employers to keep records regarding total hours worked and applicable rates of pay as well as piece rate and incentive plan formula information with accurate production records, which must be made readily available to employees upon reasonable request.
Verifying the Identity of an Employee’s “Representative”
As noted above, many records may be requested by a current or former employee’s representative, including an attorney. The statutes further provide that employers may take reasonable steps verify the identity of both the employee and the employee’s representative. This may reasonably include a signed authorization from the employee permitting the representative to inspect or receive a copy of the employee’s records.
Redaction of Private/Confidential Information
Labor Code section 1198.5, related to personnel records, specifically provides that, prior to making records available for inspection or providing a copy of records, employers may redact the name of any nonsupervisory employee contained in the records. In addition, employers have various obligations regarding the privacy of employee information including, but not limited to, prohibitions against the transmission of social security numbers in a manner inconsistent with California law. Employers should, consistent with privacy obligations, redact this and other private information such as driver’s license, banking, and dependent information before providing copies of employment records. Further, employers are entitled to—and should, in order to avoid establishing a waiver—remove any records covered by the attorney-client privilege that may have been mistakenly included in employee files, and may redact certain other confidential information and trade secrets.
An employee request for employment records does not mean an employee will inevitably file a lawsuit. Oftentimes, the request is made for unrelated reasons and, even when requested with the intent of potentially pursuing legal action, the production of records may confirm the employer’s compliance with federal, state, and local laws. In any event, employers must timely respond to requests from current and former employees (or, as applicable, the requests of their representatives) to mitigate the risk of penalties and associated attorneys’ fees and costs. In doing so, however, employers should consult with legal counsel to ensure they are providing the records required without disclosing private or confidential information or other items not subject to production.
This legal update and any use of its information does not create an attorney-client relationship. Nothing contained on this website should be considered legal advice for any specific employer or employment situation. Consult legal counsel before taking any action as a result of information contained herein.
