Which Personnel Records Can an Employee Inspect?
This post describes California employees’ rights to inspect, and receive copies of, their personnel records.
The relevant statute is California Labor Code Section 1198.5(a), which states:
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.
Who, and Which Rights?
Right away, we see two important points:
- These rights apply to both employees and former employees.
- There is the right both to inspect and receive copies of their records.
But then there is a problem – no definition of “personnel records”!
What are Personnel Records?
The Division of Labor Standards Enforcement (DLSE) provides some help. In a FAQ, the DLSE states:
Categories of records that are generally considered to be “personnel records” are those that are used or have been used to determine an employee’s qualifications for promotion, additional compensation, or disciplinary action, including termination. The following are some examples of “personnel records” (this list is not all inclusive):
1. Application for employment
2. Payroll authorization form
3. Notices of commendation, warning, discipline, and/or termination
4. Notices of layoff, leave of absence, and vacation
5. Notices of wage attachment or garnishment
6. Education and training notices and records
7. Performance appraisals/reviews
8. Attendance records
I recently helped a client respond to a former employee’s demand for a copy of her records. Even with the DLSE’s information in hand, my client felt a bit unsure about which records to provide. Here is the guidance that I offered:
- Personnel records are those that bear on the (former) employee’s employment relationship with the company.
- Non-personnel records are those that pertain to the (former) employee’s day-to-day business operations.
- If a record appears to be on the border between personnel and non-personnel, or if it addresses both personnel and non-personnel matters, then the company should treat it as a personnel record. (It is safer to provide more documents than are required, rather than to omit documents that should be included.)
The client found this guidance quite helpful.
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Photo by João Silas on Unsplash
Dana H. Shultz, Attorney at Law +1 510-547-0545 dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.