An employee has asked for a copy of his personnel file and payroll records. What documents is the employee legally entitled to receive?
Under California law, current and former employees have a right to examine and receive their personnel and payroll records. It is important that employers understand what records an employee has a right to receive and the timeframe for providing these records.
Under California Labor Code Section 1198.5, “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.”
Upon written request, the employer must provide a copy of the personnel records, but may charge the employee the actual cost of reproduction.
Similarly, under California Labor Code Section 226, current and former employees have a right to inspect or receive a copy of payroll records pertaining to their employment. An employer may charge the employee the actual cost of reproduction.
In addition, California Labor Code Section 432 provides that an employee or applicant is entitled to receive a copy of any document they have signed “relating to the obtaining or holding of employment.”
What is included in the definition of “personnel records” and “payroll records” can be a source of confusion for many employers. So, to what records is an employee legally entitled?
Although the Labor Code does not define “personnel records,” the California Division of Labor Standards Enforcement does provide some examples, including:
• Application for employment;
• Payroll authorization form;
• Notices of commendation, warning, discipline and/or termination;
• 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.
By law, an employer is not required to provide certain documents to a current or former employee, including:
• Records related to the investigation of a possible criminal offense.
• Letters of reference.
• Ratings, reports or records that were: obtained before the employee’s employment; prepared by identifiable examination committee members; obtained in connection with a promotional examination (California Labor Code Section 1198.5 (h)).
In response to a payroll records request, an employer must provide either copies of itemized wage statements or paystubs received by the employee or a computer-generated record that contains all the information on those wage statements (California Labor Code Section 226).
Timely Response Required
• Personnel records: An employer must make personnel records available to the employee or his representative within 30 calendar days from the date it receives the written request. An employer is obligated to provide a form for making a written request. If the employer fails to comply with the request within 30 days, the employee can recover a $750 penalty.
• Payroll records: An employer must provide an employee access to inspect or receive a copy of payroll records within 21 calendar days of an oral or written request. If the employer fails to respond to the request, the employee can recover a $750 penalty.
In summary, an employee has the right to review and receive copies of his or her personnel records, payroll records and any documents they have signed. Employers should respond to these requests in a timely manner to avoid facing penalties.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.