On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
California law has expanded the rights of current and former employees to inspect their personnel files. This may seem like a mundane matter, until employers realize that a request to inspect an employee’s personnel file is often the first indication employers receive that a lawsuit may be coming.
In the author’s experience, such requests rarely originate with the employees making the request, but rather, with their lawyers. It is common for lawyers representing employees to arrange such requests for the purpose of determining 1) what documents are contained in a client’s personnel file, as a means of assessing the strength of a potential suit, and 2) to determine how prepared the employer is to defend a lawsuit.
As a result, employers are well advised to take requests to inspect personnel files very seriously, for the reason that this will likely provide a first opportunity to demonstrate to the employee’s lawyer that, “there are easier pickings elsewhere.”
Right to Inspect or Copy File Documents
As a starting point, a recent change in law entitles current and former employees to inspect the personnel file, and to receive a copy upon reasonable request. Once a request is received, the employer has thirty calendar days to comply.
Frequently, the request for a personnel file is accompanied by a simultaneous request for all payroll records under Labor Code, section 226, which employers are required to provide within 21 calendar days of a reasonable request.
In responding to such requests, there are several provisions in the law that employers should be aware of. Some of these, if properly applied, may enable employers to discourage opposition lawyers from proceeding with a lawsuit. For example, if an employer maintains legally-compliant written policies which require that personnel file requests be made to a designated company representative, and submitted on employer-generated forms, employee compliance with these conditions is mandatory.
By taking advantage of these and other features in the law, employers can effectively demonstrate that they know their rights and will aggressively defend against any legal challenges. It is the author’s experience that plaintiffs’ lawyers typically prefer to engage employers with less sophistication and resolve.
When complying with a reasonable request, employers may be required to produce more than just those documents contained in an official “personnel file.” Pursuant to Labor Code, section 1198.5, the term “personnel file” is interpreted to mean not only the actual folder maintained by employers, and its contents, but all documents relating to the requesting party that would normally be maintained in such a file.
Under the law, current or former employees may request to inspect or copy personnel records, or may designate a “representative” for this purpose. A “representative” may include a lawyer, family member or friend, for example.
The law requires employers, upon written request, to allow for an inspection or to provide copies of requested documents within 30 days of the request. As noted above, the employer may designate a person to whom such requests must be submitted, and may further stipulate that the request be submitted on a company-generated form. But, to be enforceable, these requirements must be in writing and in place before the request is made.
One immediate advantage of properly incorporating such requirements in written policies is that the deadline for employer compliance does not begin to count down until a proper request has been made.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over 37 years. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives. He has a remarkable record of success: Not one employer-client acting on his advice has been sued in over 37 years.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. http://www.jaygputnam.com/newsletter/
This newsletter is not intended as a substitute for legal advice and its content is provided for discussion purposes only. Any suggestions or recommendations must be assessed by competent legal counsel to be sure the unique requirements of each workplace are properly considered.