Allow Ex-Employees Access to Personnel Files, Performance Records

 

Do the requirements of Labor Code Section 1198.5 apply to former employees?

Yes! This is the case, according to the interpretation of the Labor Commissioner.

Section 1198.5 of the California Labor Code allows an employee to inspect the employer’s personnel files for records relating to the employee’s performance or grievance at reasonable times. The request shall not apply to records relating to possible criminal violations, letters of reference, records obtained before the employee’s employment or any records related to a promotional exam.

The Labor Commissioner has concluded that the term “reasonable,” as used in the statute, can be determined only on a case-by-case basis.

Pursuant to California Labor Code Section 432, an employee has a right to a copy of any document he or she has signed relating to the obtaining or holding of employment.

Compliance

The employer must do one of the following in order to comply with the statute:

  • Keep a copy of each employee’s personnel records at the place where the employee reports to work;
  • Make the employee’s personnel records available at the place where the employee reports to work within a reasonable period of time following an employee’s request; or
  • Permit the employee to inspect his or her personnel records at the location where the employer stores the personnel records, with no loss of compensation to the employee.

The statute does not apply to records relating to the investigation of a possible criminal offense; letters of reference; or ratings, reports or records that were obtained before the employee’s employment, obtained in connection with a promotional examination, or prepared by examination committee members who can be identified.

Former Employees

The prior version of the statute used slightly different language, and from that language could be implied the fact that the protection was extended to ex-employees. The current language can no longer be read in that way.

The Division of Labor Standards Enforcement (DLSE), however, has concluded that it was not the intent of the Legislature to limit the protection only to current employees, so the DLSE will enforce the statute in favor of ex-employees.

In light of the DLSE’s stance, an employer should not deny an ex-employee access to his/her own personnel file, without consulting with legal counsel.

Reprinted with permission from the California Chamber of Commerce, www.calchamber.com. The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members.

P•A•S Associates has expertise in human resources and other areas involving employment issues. P•A•S Associates, in providing this tip, does
not represent that it is acting as an attorney or that it is giving any form of legal advice or legal opinion. P•A•S Associates recommends that
before making any decision pertaining to human resource issues or employment issues, including the utilization of information contained on this
website, the advice of legal counsel to determine the legal ramifications of the use of any such information be obtained.
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