Employees in private industry have long been entitled to look at their personnel records. Now the governor has signed a new law that extends this right to many public employees and clarifies the inspection rules for workers in both the public and private sectors.
Who Can See Files
Under S.B. 1327, which takes effect Jan. 1, 2001, most employees will have the right to inspect their personnel records, and employers must permit them to do so under specified procedures. This applies to private and public employers, including cities, counties, local agencies and public school districts, but not to state employees and public safety officers.
You’re not required to show personnel files to non-employees such as job applicants, employees’ relatives, union representatives or lawyers unless the request includes a court subpoena. It’s not clear whether ex-employees are entitled to see their files.
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When And Where
You must make the records available at reasonable intervals and times, but in most cases you don’t have to allow a worker to inspect their file while they’re on the job.
You can make the records available in any of the following ways:
- by keeping a copy of each employee’s personnel records at the place where they report to work so they can be reviewed on-site;
- by providing the records at the employee’s workplace within a reasonable time of the employee’s request; or
- by allowing the worker to see the records at the place where they’re stored off-site. If they are only accessible off-site, you have to permit the inspection during the employee’s paid work time.
Employers and recognized employee organizations such as unions can jointly agree to additional inspection conditions. Also, the law authorizes the labor commissioner to issue regulations spelling out more detailed rules.
What Employees Can Examine
Workers can review all records relating to their performance or any grievance that concerns them. But you don’t have to disclose reference letters, records relating to the investigation of a possible criminal offense, or reports that were obtained before the person was hired. And they don’t have the right to look at paperwork prepared by examination committees or obtained in connection with a promotional exam.
Special rules apply to school district employees, including giving them the right to review and comment on negative documents before they’re placed in the personnel file.
Copying And Note-Taking
The law doesn’t specify whether you have to let employees take notes or make copies, but it’s probably reasonable to do so. It may be more practical to supply copies than to have the employee potentially spend hours taking notes.
Employers’ Rights
Employers can insist on the following procedures:
- You can require an appointment and advance notice for the review of the file.
- You can and should have someone present during the inspection to ensure that records are not changed, added to or removed from the file.
Use Caution With Personnel Files
Because you never know when an employee may ask to see their personnel file, it’s important to pay close attention to the information that goes into it. In particular, don’t file unsubstantiated derogatory statements or other unnecessary information.
Workers who learn about your negative comments for the first time when reviewing their file are likely to be shocked, angry and more inclined to sue. And it could be embarrassing—and costly—to see your careless remarks blown up on a display board in front of a jury.