An Employer’s Duty To Respond To An Employee’s Or Former Employee’s Records Demand

Scenario:  Employee is terminated or quits or even continues with the employer but makes a request individually or through a lawyer for “all payroll records, timekeeping records and personnel files.” 

What should happen next?  If the request is made through a lawyer, make sure that the lawyer has provided a clear and unambiguous Authorization for the Release of Information signed by the employee (or ex-employee).  If not, request and obtain same before any production. 

Next, calendar the time for response and production of documents:  21 days for payroll records (Labor Code section 226 (c)) and 30 days for personnel files (Labor Code section 1198.5 (n).)  Failure to timely respond to the records request will subject the employer to a $750.00 penalty (paid to the employee, former employee or Labor Commissioner. (Labor Code sections 226(f) and 1198.5 (k).)

Thereafter, the employer should review its records and consider the following:

WHAT SHOULD BE PRODUCED:

1. WHATEVER THE EMPLOYEE HAS SIGNED:

Employers are required to give an employee, upon request, a copy of any instrument that the employee has signed relating to the obtaining or holding of employment. (Labor Code Section 432 states:  “If an employee or applicant signs any instrument relating to the obtaining or holding of employment, he shall be given a copy of the instrument upon request.“)

Types of Documents: 

Typically, this might be the initial employment application, employment contract, tax withholding documents and direct deposit information.  It might also include employee signed reviews, notices and/or warnings, discipline, inquiries or complaints.

Time for Production: 

There is no specific time limit to produce these documents or specific penalties for not producing (or not timely producing).  However, the below records (which many include documents signed by the employee) have specific timing requirements and penalties for not timely providing same, so the better practice would be to provide these records within the shortest time period set forth below (i.e., 21 days from request).

2. PAYROLL RECORDS:

Employers are required to keep accurate payroll records on each employee, and such records must be made readily available for inspection by the employee upon reasonable request. (Labor Code Section 226(b).)  This probably includes wage statements and time records. 

Types of Documents: 

Per section  226, the applicable payroll records include:  “(a) An employer, semimonthly or at the time of each payment of wages, shall furnish to his or her employee, either as a detachable part of the check, draft, or voucher paying the employee’s wages, or separately if wages are paid by personal check or cash, an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee, except as provided in subdivision (j), (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, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and only the last four digits of his or her social security number or an employee identification number other than a social security number, (8) the name and address of the legal entity that is the employer and, if the employer is a farm labor contractor, as defined in subdivision (b) of Section 1682, the name and address of the legal entity that secured the services 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 and, beginning July 1, 2013, if the employer is a temporary services employer as defined in Section 201.3, the rate of pay and the total hours worked for each temporary services assignment. “  Note:  per subsection (j), the itemized statement set forth in subsection (s) is not required when “employee’s compensation is solely based on salary and the employee is exempt from payment of overtime.”

Section 226(b) states:  “An employer that is required by this code or any regulation adopted pursuant to this code to keep the information required by subdivision (a) [and] shall afford current and former employees the right to inspect or receive a copy of records pertaining to their employment, 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. “

Time for Production: 

These records need to be made available within 21 days of the request. (Labor Code section 226(c).)

Employer’s Failure to Timely Comply: 

The failure to provide such records within 21 days of the request will subject the employer to a statutory penalty of $750.00.  Labor Code section 226 provides:  “(f) A failure by an employer to permit a current or former employee to inspect or receive a copy of records within the time set forth in subdivision (c) entitles the current or former employee or the Labor Commissioner to recover a seven-hundred-fifty-dollar ($750) penalty from the employer.“

3. PERSONNEL RECORDS:

Labor Code section 1198.5 provides in pertinent part:  “(a) Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee. “

Types of Documents:

Application for employment

Employment contract

Payroll authorization form

Notices of commendation, warning, discipline, and/or termination (probably not writings prepared but not provided to employee)

Notices of layoff, leave of absence, and vacation

Notices of wage attachment or garnishment

Education and training notices and records

Performance appraisals/reviews

Attendance records

(Labor Code section 1198.5; see also, https://www.dir.ca.gov/dlse/FAQ_RightToInspectPersonnelFiles.htm)

Note:  Labor Code section 2810.5 requires the employer to give a written notice to the employee, at the time of hiring, regarding certain information.  That notice should probably also be produced as part of the personnel file, if it exists.  The notice should state, per section 2810.5, provides:  

“(a) (1) At the time of hiring, an employer shall provide to each employee a written notice, in the language the employer normally uses to communicate employment-related information to the employee, containing the following information:

(A) The rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable.

(B) Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances.

(C) The regular payday designated by the employer in accordance with the requirements of this code.

(D) The name of the employer, including any “doing business as” names used by the employer.

(E) The physical address of the employer’s main office or principal place of business, and a mailing address, if different.

(F) The telephone number of the employer.

(G) The name, address, and telephone number of the employer’s workers’ compensation insurance carrier.

(H) That an employee: may accrue and use sick leave; has a right to request and use accrued paid sick leave; may not be terminated or retaliated against for using or requesting the use of accrued paid sick leave; and has the right to file a complaint against an employer who retaliates.

(I) Any other information the Labor Commissioner deems material and necessary.

(2) The Labor Commissioner shall prepare a template that complies with the requirements of paragraph (1). The template shall be made available to employers in such manner as determined by the Labor Commissioner.“

Time for Production: 

“(b) (1) The employer shall make the contents of those personnel records available for inspection to the current or former employee, or his or her representative, at reasonable intervals and at reasonable times, but not later than 30 calendar days from the date the employer receives a written request, unless the current or former employee, or his or her representative, and the employer agree in writing to a date beyond 30 calendar days to inspect the records, and the agreed-upon date does not exceed 35 calendar days from the employer’s receipt of the written request.”

Employer’s Failure to Timely Comply: 

“(k) If an employer fails to permit a current or former employee, or his or her representative, to inspect or copy personnel records within the times specified in this section, or times agreed to by mutual agreement as provided in this section, the current or former employee or the Labor Commissioner may recover a penalty of seven hundred fifty dollars ($750) from the employer.”

NOTE:  WHILE UNDER ONE CODE SECTION THE EMPLOYEE HAS A RIGHT TO INSPECT OR RECEIVE A COPY OF THE PRODUCED RECORDS (LABOR CODE SECTION 226(b)) AND THE OTHER CODE SECTION SAYS THE EMPLOYEE HAS A RIGHT TO INSPECT AND RECEIVE A COPY (LABOR CODE SECTION 1198.5(a)), THE BETTER PRACTICE IS TO PROVIDE COPIES AS TO ALL THE PRODUCED RECORDS.  THERE IS NO REASON TO ALLOW A FORMER EMPLOYEE INSPECTION RIGHTS ON THE EMPLOYER’S PREMISES. 

4. THE EMPLOYEE IS NOT ENTITLED TO:

“Personnel records” do not normally include things like:

1. Records relating to the investigation of a possible criminal offense;

2. Letters of reference (or other communications re qualifications—before, during and relating to termination; discuss the extent of withholding with legal counsel); and

3.  Ratings, reports, or records that were:

(A) Obtained prior to the employee’s employment

(B) Prepared by identifiable examination committee members (such as a termination committee)

(C) Obtained in connection with a promotional examination

(Labor Code section 1198.5(h).)

4. Communications with legal counsel (Evidence Code section 954; this attorney client issue is a bit more nuanced so you would need to discuss the facts with your legal counsel).

MISCELLANEOUS:

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.  (Labor Code section 1198.5(d).) If an employee or former employee files a lawsuit that relates to a personnel matter against his or her employer or former employer, the right of the employee, former employee, or his or her representative to inspect or copy personnel records under this section ceases during the pendency of the lawsuit in the court with original jurisdiction.  (Labor Code section 1198.5(n).)

Disclaimer

This entry does not give specific legal advice about your specific legal problem. No text or graphic contained in this entry is to be or should be used or relied upon as legal advice. This entry does not create an attorney-client relationship. If you want specific legal advice about your particular legal issues, or if you want to create an attorney-client relationship, you need to retain the Law Offices of Ron A. Stormoen by a signed written retainer agreement.