Current and former California employees have a right to inspect certain employment records kept by their employer. These include the employee’s personnel file and payroll records. This article briefly discusses some of California’s employment record keeping requirements.
The Personnel File.
A personnel file is commonly understood as the collection of documents kept by an employer about a particular employee. California’s Labor Code states (1) what documents must be kept in a personnel file, (2) how current and former employees may request and inspect their personnel file, and (3) what penalties employers face if they refuse a lawful employee request to inspect their personnel file. (Cal. Lab. Code § 1198.5.)
California law does not provide much guidance for what documents must actually be included in the employee’s personnel file. However, the law does specify that the file must include “records that the employer maintains related to the employee’s performance or any grievance concerning the employee.” Therefore documents such as disciplinary write-ups, records of verbal warnings, reprimands, performance improvement plans, suspensions, performance evaluations, and termination letters must be kept in the employee’s personnel file. California also states that an employee, upon request, shall be given a copy of “any signed instrument related to the obtaining or holding of employment.” (Cal. Lab. Code § 432.) Therefore, any contracts signed by the employer and employee such as commission agreements, agreements for bonus compensation, employment contracts, signed employee handbooks, and arbitration agreements must be produced along with any request for the employee’s personnel file.
California law also provides some examples of what documents do not have to go into an employee’s personnel file including records relating to the investigation of a criminal offense and letters of reference. Law enforcement personnel also have separate rights related to the maintenance and inspection of their personnel files.
How to inspect your personnel file.
Both current and former employees have a right to inspect their own personnel files following the submission of a written request to their employer. While the law states that the inspection may be done in-person at the place of employment, the common practice is to mail or email the employee a copy of the records in lieu of an in-person inspection. Employers may elect to charge the employee for the actual reproduction costs of the personnel file (i.e. $0.10 per page).
Importantly, employers are required to produce the personnel file for inspection within 30 days of receipt of the employee’s request. Employers who do not permit the inspection face a $750.00 penalty. The employer may also be sued by the employee through a civil lawsuit or at the Labor Commissioner if records are not produced. Under certain circumstances, the employee may recover their attorney fees if a lawsuit was required to compel production of the personnel file.
Payroll records are commonly referred to as “pay stubs” and are legally referred to as “itemized wage statements”. In contrast to personnel files, California is very strict in regard to what employee payroll information must be kept by the employer.
California requires employers to provide an accurate and written itemized statement showing: (1) the gross wages earned (ithe amount before deductions) (2) the total hours worked by the employee, (3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis (the number of units sold, picked, miles driven, etc.), (4) all deductions (taxes and withholdings), (5) net wages earned (the amount after deductions are taken), (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and only the last four digits of his or her social security number or an employee identification number other than a social security number, (8) the name and address of the legal entity that is the employer; and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours (the employee’s regular hourly rate and any overtime rates). (Cal. Lab. Code § 226(a).)
The itemized wage statement must be provided to the employee semi-monthly and even more frequently in some circumstances. The failure to maintain any records or even providing the employee with inaccurate payroll information by mistake can expose the employer to very harsh penalties of up to $4,000 per employee, as well as penalties under the Labor Code Private Attorney General Act (“PAGA”).
Like personnel files, current and former employees have a right to inspect their payroll records even when the payroll records were furnished to the employee on a regular, semi-monthly basis. Employers must produce payroll records no later than 21 days of the employee’s request and employers who fail to timely produce records face a $750.00 penalty as well as paying the employee’s attorney fees.
Employees who believe they have been fired as a result of unlawful discrimination, retaliation, or harassment will often request their personnel file and payroll records shortly after their termination. If you have been terminated and would like assistance requesting and reviewing your own employment records, contact the Law Office of Brian Mathias.