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New Law To Take Effect January 1, 2013 Regarding Employee Access to Personnel Files

December 3, 2012

Employment Law Bulletin

California employees already have the right to inspect their personnel records. However, effective January 1, 2013, employers will have to comply with additional statutory requirements related to access by current and former employees to their personnel files and will also face penalties for noncompliance. Under the new law.

  • Former employees now have the same rights to inspect and secure a copy of personnel records as do current employees. The employers may require reimbursement of actual copying costs.
  • Employers have the right to redact the names of any non-supervisory employees from the personnel records.
  • An employee can designate a representative (in writing) to conduct the inspection of, or to receive a copy of, his or her personnel file.
  • Employers are required to develop, and to provide upon request, a written form employees or their representatives may use to request access to, and a copy of, records in their personnel files.
  • The inspection must be allowed and a copy of the personnel records provided within 30 calendar days after the employer receives a written request, unless the parties agree in writing to extend the deadline to no more than 35 calendar days after the employer’s receipt of the written request.
  • An employer is not required to comply with more than 50 requests for a copy of the records (seeking 50 separate employees’ records) filed by a representative or representatives of employees in one calendar month.
  • An employer is not required to comply with more than one request per year by a former employee to inspect (or receive a copy of) the personnel file.
  • If an employee is required to inspect or receive a copy of the personnel file at a location other than the place where he or she reports to work, no loss of compensation to the employee is permitted because of the time needed for the employee to travel from the site where the employee normally reports to work.
  • Employers are required to maintain personnel files for a period of 3 years following the termination of an employee’s employment.
  • If a former employee seeking to inspect his/her personnel records was terminated for a violation of law, or an employment?related policy, involving sexual harassment or workplace violence, an employer may comply with the request by doing one of the following: (a) making the personnel records available to the former employee for inspection at a location other than the workplace that is within a reasonable driving distance of the former employee’s residence; or (b) providing a copy of the records by mail.

Failure to comply with these statutory requirements will expose employers to a civil penalty of $750. Employees may also bring a civil action for injunctive relief to obtain compliance and the recovery of costs and reasonable attorneys’ fees in connection with such an action. In addition, the new law reduces the criminal penalty for a violation of the statutory requirements related to employee access to personnel files from a misdemeanor to an infraction.

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This Bulletin is made available for educational purposes and to provide general information on current legal topics, not to provide specific legal advice. The publication of this Bulletin does not create any attorney client relationship, and this Bulletin should not be used as a substitute for competent legal advice from a licensed professional attorney.

 

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