California Labor Code 1198.5: Employee Rights to Personnel Records and Employer Compliance Guide

Employees in California can request access to personnel and payroll records under strict timelines defined by Labor Code 1198.5. Employers must comply with requests within 21 to 30 days or face penalties for noncompliance with record access laws.

By Douglas Wade, Attorney

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Table of Contents

Introduction

1. Section 1198 of the Labor Code grants former and present workers the right to access their personnel files

2. The Labor Code does not define the phrases “personnel file” or “personnel records.”

3. After a lawsuit is filed, the right to view a personnel file according to California Labor Code 1198.5 expires

4. Section 432 of the Labor Code grants employees and applicants the right to obtain a duplicate of any document they have signed

5. Companies have twenty-one days to submit the payroll data that Labor Code section 226 requires

Introduction

Employers must understand the strict timelines and procedures set forth by California law when responding to a worker’s request for certain employment paperwork. There are five record categories that are often asked for by applicants, former or current employees. There are strict due dates for completing those requests.

1. Section 1198 of the Labor Code grants former and present workers the right to access their personnel files

Section 1198.5(a) of the California Labor Code states that all current and former employees, or their representatives, are entitled to view and obtain a copy of their own personnel records. Regarding requests under California Labor Code 1198.5, there are two ways to submit a written request:

Composed and submitted by the worker, either former or current, or by their agent.
Written and sent in by the worker, either former or current, or by their representative, using a form that was supplied by the company.

Within 30 calendar days after receiving the written request, employers are required to comply.

2. The Labor Code does not define the phrases “personnel file” or “personnel records.”

There is a lot of uncertainty regarding what documents should be kept in an employee’s personnel record and what papers must be made accessible upon request to view or copy the personnel records, since California Labor Code 1198.5 mentions “personnel records” but never establishes the term. The Division of Labor Standards Enforcement has issued some guidelines that express the following viewpoint; however, it is not legally enforceable on employers.

Records used or formerly used to assess an employee’s eligibility for a promotion, raise in pay, or disciplinary procedure, including termination, are typically categorized as “personnel records.” Here are a few instances of “personnel records” (this list isn’t exhaustive):

A job application
Authorization document for payroll
Notifications of recognition, caution, discipline, and/or dismissal
Vacation, leave of absence from work, and layoff notices
Notifications of garnishment or wage attachment
Records and notices pertaining to training and education.
Evaluations and assessments of performance
Records of attendance

However, section 1198.5(h) of the Labor Code makes it clear that the following are exempt from this section: (1) records pertaining to the investigation of a potential criminal offense; (2) reference letters; and (3) ratings, records, or reports that were: obtained before the employee was hired; prepared by recognized members of the screening committee; or obtained as part with a performance review. Employers may also choose to redact the names of “all nonsupervisory employees” that are included in the desired personnel file.

According to California Labor Code 1198.5, employers are required to retain a copy of the worker’s personnel files for three years following the worker’s departure.

3. After a lawsuit is filed, the right to view a personnel file according to California Labor Code 1198.5 expires

According to California Labor Code 1198.5, the right to view personnel records expires if a former or current employee brings a lawsuit that “refers to a personnel dispute against their former or current employer.”

4. Section 432 of the Labor Code grants employees and applicants the right to obtain a duplicate of any document they have signed

Any document pertaining to “holding or obtaining of employment” may be given to an applicant or employee. The paperwork must be given to the applicant or employee “upon request.”

5. Companies have twenty-one days to submit the payroll data that Labor Code section 226 requires

Employers must give workers pay stubs or itemized wage statements that include a list of different things. The DLSE offers samples of compliance pay stubs for hourly employees and employees compensated by piece rate on its website.

Employers are required by Labor Code section 226(c) to reply to written or verbal requests to view or copy the documents covered by this section within twenty-one calendar days. Employers may charge the true costs of reproduction and take reasonable measures to verify the identity of a former or present worker under this section of the Labor Code.

Employers should not take requests for payroll and personnel information lightly, as noncompliance with the various criteria may result in liability. Once a worker or their agent requests employment-related papers verbally or in writing, it is essential to get legal advice right away to ensure compliance. It is also an important period to determine whether the employee has the right to sue and, if at all feasible, to take action to settle any prospective disputes before going to court.

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California Labor Code 1198.5: Employee Rights to Personnel Records and Employer Compliance Guide

Introduction

1. Section 1198 of the Labor Code grants former and present workers the right to access their personnel files

2. The Labor Code does not define the phrases “personnel file” or “personnel records.”

3. After a lawsuit is filed, the right to view a personnel file according to California Labor Code 1198.5 expires

4. Section 432 of the Labor Code grants employees and applicants the right to obtain a duplicate of any document they have signed

5. Companies have twenty-one days to submit the payroll data that Labor Code section 226 requires

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