An Employee’s Right to Inspect His/Her Personnel File

One of the many changes to California’s numerous labor laws in 2013 was the modification of California Labor Code Section 1198.5. Pursuant to that statute, an employer must maintain a copy of each employee’s personnel records for at least three years following the end of that employee’s employment. (Section 1198.5(c)(1)) Both current and former employees are entitled to review and receive a copy of personnel records within 30 days of making a written request. (Section 1198.5(b)) Employees, either current or former, may designate a representative to review, receive and copy the file on their behalf. (Section 1198.5(a)) The cost of making the copies shall be borne by the employee. (Section 1198.5(b))

For current employees, if the records are located off-site, the employee’s pay cannot be docked for the time needed to travel to the location where the records are located. (Section 1198.5(c)(2)) For former employees, they can either inspect the file at the place where the records are stored or they can request that the file be mailed to them if the employee pays the cost of postage. (Section 1198.5(c)(3)) If a former employee was terminated due to a violation of a law or an employer policy involving harassment or workplace violence, employers have the option of either sending a copy of the personnel records to the former employee via mail or making the records available for inspection at a location other than the workplace, so long as it is within a reasonable driving distance of the former employee’s residence. (Section 1198.5(c)(3)(B)) Employers also have the right to redact the names of any non-supervisory employee from the records being provided to any requesting employee. (Section 1198.5(g))

These requirements do not apply to employees covered by valid collective bargaining agreements that provide a mechanism by which employees can inspect and receive personnel records. (Section 1198.5(q))

Former employees are only permitted to make one records inspection request per year when seeking records from their former employer. (Section 1198.5(d))

Employers who fail to comply with the law may be subject to a $750 fine, which can be recovered by a current or former employee or the Labor Commissioner. Current and former employees may also seek injunctive relief and/or attorneys’ fees in actions for enforcement of an employer’s obligations under Labor Code Section 1198.5. (Section 1198.5(k))

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