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Personnel Records

Inspecting Your Personnel File -- How Do I Go About Reviewing My File?

As an employee rights attorney, this question is one I am asked almost weekly. The basic right is to review your personnel file upon prior request during business hours, and after a "reasonable time" to produce the records for inspection. You may obtain copies of those employment documents in your file bearing your signature. You may inspect but not copy or remove other records not bearing your signature. (See Labor Code Sections 1198.5 & 432)

What You Can Do if Your Employer Does Not Cooperate with the Inspection Request

The "teeth" behind Labor Code Sections 1198.5 and 432 may be Labor Code Section 1199 (c) which makes it a misdeameanor to refuse to comply with 1198.5, and imposes a fine of NOT LESS THAN $100 and 30 days imprisonment. While such extreme action is unlikely to be sought by a local prosecutor, employers are aware that a disgruntled employee may seek the assistance of the local police for a wilfull failure to comply with the code.

What else might give some "teeth" to 1198.5? Labor Code Section 1174.5 imposes a civil penalty on an employer who fails to allow the Labor Commissioner or one of its employees to examine employment records to ascertain compliance with record keeping laws. Section 1174.5 also imposes a civil penalty for failure to maintain employment records.

The "teeth" can be set as follows:

  • First, the employee can contact the Labor Commissioner to request the Commissioner to conduct an audit or general inspection of the employer's record keeping practices. (This recourse however is unlikely to produce any Commission action because of the Commission's limited resources and priorities. Still, a formal complaint filed with the Commissioner and served on the employer may induce the H.R. Department to comply).
  • Second, if you suspect the employer does not produce the records or allow the inspection because the records are not kept, you can complain the Labor Commissioner that the employer is in violation of Labor Code Section 1174.5 requiring the employer "maintain" employment records.
    • The "record keeping" violation may be systemic, and involve hundreds of employees.
    • If so, there is an action under the new California Labor Code Private Attorneys' General Act of 2004 permitting a class action to recover penalties for each employee for each violation. The new law also allows for recovery of attorneys fees and costs. So, a little matter of not producing a personnel file could turn into a major class action suit.

And now, for a practical point: personnel files are required to contain only a basic category of information: "records relating to the obtaining or holding of employment". (Labor Code Sec. 432) That's a vague description, and employers are crafty at maintaining multiple files, only one of which is the official "personnel file". Typically, the H.R. person's personal notes and investigation findings are kept in separate files. The bottom line: What you see is not all there is to see. Ultimately, a subpoena for employment records issued during a litigation is the only enforceable and comprehensive method of getting all the records in all the different files.

Conclusion

Sometimes the best way to see your records is before you alert your employer to the possibility of a lawsuit, and while you are still employed. Most employees know when their employment is at risk, and can proactively arrange a time to make the inspection before being "escorted" off the the premises.

While Section 432 limits what you can obtain from the file as copies, you can take notes of everything else you see (or what you would expect to see, but don't!).

Employee Rights Attorney Frank Pray

5160 Campus Drive

Newport Beach CA 92660

949.251.1006

877.job.atty


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