Employers are required by law in California to keep personnel files for every employee.
Employees may inspect those personnel file/records at “reasonable times and intervals.” To facilitate the, an employer must do the following:
- Maintain a copy of each employee’s personnel records for no less than 3 years.
- Make a current employee’s personnel records available, and if requested by the employee or representative, provide a copy at the place where the employee reports to work or at another location agreeable to the employer and the requester.
- Make a former employee’s personnel records available, and if requested by the employee or representative, provide a copy at the location where the employer stores the records unless the parties mutually agree in writing to a different location.
The Division of Labor Standards Enforcement (DLSE) has stated that “reasonable times” is during the regular business hours of the office where personnel records are maintained. The DLSE has stated that “reasonable intervals” is once every year, unless there is reasonable cause to believe that the file has been altered in a manner that might adversely affect the interests of the employee, or the file contains information that is pertinent to an ongoing investigation affecting the employee, in which case more frequent inspections would be considered “reasonable”.
The employer must make the employee’s personnel records available within 30 calendar days from the date the employer receives a written request for inspection.
Employers do not have to provide everything in the personnel file for inspection by the employee or the former employee. By law, the right to inspect does not apply to:
- Records relating to the investigation of a possible criminal offense.
- Letters of reference.
- Ratings, reports, or records that were:
- Obtained prior to employment
- Prepared by identifiable examination committee members
Records that are generally considered to be "personnel records" are those that are used or have been used to determine an employee's qualifications for promotion, additional compensation, or disciplinary action, including termination. The following are some examples of "personnel records" (this list is not all-inclusive):
- Application for employment
- Payroll authorization form
- Notices of commendation, warning, discipline, and/or termination
- Notices of layoff, leave of absence, and vacation
- Notices of wage attachment or garnishment
- Education and training notices and records
- Performance appraisals/reviews
- Attendance records
Employers are also required to allow the employee to have a copy of their personnel record. Employers can charge the employee to make the copy an amount not to exceed the actual cost of reproduction, not later than 30 calendar days from the date the employer receives the request. A former employee may receive a copy by mail if he or she reimburses the employer for actual postal expenses.
Employers can require employees to inspect the file on their own free time. However, if required the employee to travel to the location where the records are stored, the inspection must be during a time when the employee is scheduled to work and the employee must be compensated for that time at their regular rate of pay.
The penalty for failing to comply with the regulations regarding the employee’s right to inspect their file is $750. An employee may also bring an action for injunctive relief to ensure compliance and recover costs and reasonable attorney’s fees.
Employers should maintain all personnel files in a consistent and legal matter. All unnecessary items should be removed. The official personnel file should contain only items such as those listed above. When an employer receives a written request from an employee to inspect their file, review the file first to ensure that all extraneous items are removed.
Lauren Sims is the article author and the Director of Human Resources Consulting for eqHR Solutions.
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