Labor Code §1198.5 currently provides that a California employer must permit the inspection of employee personnel files at "reasonable intervals." Labor Code §1198.5, however, does not specify a time limit for compliance, a penalty for noncompliance, nor does it address whether or not a former employee maintains such inspection rights. Assembly Bill 2674 eliminates all of these deficiencies.

Effective January 1, 2013, revised California Labor Code §1198.5 provides in pertinent part that:

1. The employer must make a past or present employee's personnel records available for inspection and provide a copy at a charge not to exceed the actual cost of reproduction and postage within 30 calendar days1 of the employer's receipt of the employee's written request;
2. The employer may insist that such requests be provided on an employer-provided form and be directed to a designated person;
3. The employer may redact (strike out) the name(s) of any nonsupervisory employee(s) contained in the employee's personnel records prior to the employee's inspection, or copying;
4. The employer must maintain a copy of the employee's personnel records for a minimum three (3) years after the termination of employment; and that
5. An employer who fails to comply with the above inspection and copying rights shall be subject to a statutory penalty of $750 plus injunctive relief and attorneys' fees absent a showing of "impossibility of performance."

For current employees, the employer must provide a copy to the employee or make the records available for inspection (as the employee requests) at the place where the employee reports to work, or other mutually-agreeable location. For former employees, the employer must provide a copy to the former employee, or make the records available for inspection (as requested by the employee) at the location where the employer stores the records, unless a different location is mutually agreed upon in writing.2 If the employer desires to mail the employee a copy, the employer may request reimbursement of the actual copy charges and postal mailing costs.

Unless there is a pending lawsuit relating to a personnel matter, the employer will only be required to comply with one request for inspection, or copying, per year by a former employee, and only up to 50 requests per month by representative(s) of such employees.

The inspection and copy requirements enumerated above do not apply to:

1. Records relating to the investigation of a possible criminal offense; or
2. Letters of reference; or
3. Ratings, reports, or records that were: (a) obtained prior to the employee’s employment; (b) prepared by identifiable examination committee members; or (c) obtained in connection with a promotional examination; or
4. Employees subject to the Public Safety Officers Procedural Bill of Rights or the Information Practices Act of 1977; or
5. Certain employee covered by a valid collective bargaining agreement.

In light of the new laws, California employers should:

1. Review and amend any references to an employee's right to inspect and/or copy his or her personnel file in the employee handbook (if applicable);
2. Review the company's record retention policies and confirm that: (1) the appropriate documentation is being retained in the employee personnel files and that (2) employment records are properly keep for the legally required time frames, and when no longer required are properly destroyed;
3. Inform and train all managers on both current and former employees right to request and review a copy of the contents of their personnel files, as well as your organization's policies on how to respond and satisfy said requests;
4. If desired, have an employee request form prepared that complies with requests for inspection and copying made under Labor Code §1198.5(b)(2)(A)(ii); and
5. Consider providing your employees with a written notice setting forth the name of the person to whom a written inspection request should be submitted.

Footnotes:

¹ Both the employee and employer may agree in writing to extend the time to a maximum of 35 days.

² If a former employee was terminated for a violation of law (or an employer policy) involving harassment or workplace violence, the employer may make the records available for inspection at another location so long as that location is a reasonable driving distance from the former employee’s residence.