Can an employee view records upon request in California? In short, the answer is ‘yes’, and the employer has to comply with such a request within a specific time frame or risk incurring penalties.
Upon a reasonable request, a California employer must allow employees to inspect records that include the following:
- Name, address, occupation, and social security number
- Time records that reflect the start and stop times, meal periods, shift intervals, and total daily hours
- Payroll records
- Records used to determine the employee’s qualifications for employment, promotion, additional compensation, termination, disciplinary action, employee grievances (i.e., the personnel file)
- Form I-9
- All documents the employee has signed
Requests to see these documents may be oral or written, and may be made by the employee or by the employee’s representative. If the employee has a lawyer, for example, this person could make a request on the employee’s behalf. It may be a good idea to put oral requests into writing for documentation of when the request was received.
What records should not be kept in the employee’s personnel file?
While an employee can view their records, this does not mean the employer must keep all of these documents in the same location. In fact, there are some records that should always be kept separate. Typically this is to maintain employee privacy or for other legal reasons. Here are some examples of employee records that should not be in the personnel file:
- Form I-9
- EEOC or California Department of Fair Employment and Housing discrimination charge information and related documents
- Workers’ compensation claims and related documents
- Medical information
- Genetic information
- Survey of ethnic, disabled or veteran status
- Information that could be defamatory
- Non-job-related information
Requests from an employee to view records: What are the employer’s obligations?
“If you do receive a request for an inspection or copying from an employee (a current employee, a former employee, or their representative), you have to comply with that request no later than 21 calendar days from the receipt of the request.” Amber Grayhorse advised in a recent CER webinar. This is why the date of the request is so important to document.
The employer may charge for the actual cost of creating copies of the materials. The employer may also designate a person to whom request must be made.
If the employer refuses an inspection, the employer may be subject to an infraction. (Formerly a misdemeanor). The employer may also be subject to penalties. The employee or the Labor Commissioner may recover a $750 penalty for that refusal. The employee can also pursue injunctive relief so that you comply with their inspection rights. Last but not least, attorneys’ fees and costs are probably the biggest expense if an attorney must be involved in the process. That said, the employer does have an affirmative defense if the records are impossible to access.
The above information is excerpted from the webinar “HR Recordkeeping in California: What to Keep, How to Store, and When to Toss.” To register for a future webinar, visit CER webinars.
Attorney Amber M. Grayhorse is a senior associate in the Los Angeles office of Nossaman LLP. Grayhorse has significant experience advising employers on a wide range of employment-related matters and litigating employment disputes in state and federal courts.