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Employee rights to inspect and obtain your personnel files under California law

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You have the right to see your personnel file under California law

Under California law, current and former employees have the right to inspect and receive a copy of their personnel files to know what information their files contain about them and their job performance. California Labor Code Section 1198.5.
 

Everything you need to know about getting your personnel file under California Labor law

This is the most comprehensive article you are going to find about how to get a copy of your personnel file under California law. This article explains everything that you need to know about how to get your personnel file under California law. 

If you are bringing a wage claim, employment law claim and/or any type of Labor Code violation claim against your employer and/or former employee - then you should pull up a chair and read this article. The bottom line is that you will need to get a copy of your personnel file if you pursue one of these types of cases and/or are considering bringing one of these cases. 

In this article we answer and/or address these issues or questions on your obtaining copies of your personnel file under California law:

How do I get a copy of my personnel file under California law?
 
Can I have a copy of my personnel file? 
 
Do employers have to show workers their personnel files? 
 
Is an employee entitled to a copy of their personnel file? 
 
How can I request my personnel file under California law? 
 
What are employee rights to personnel files under California law? 
 
You have the right to see your personnel file under California law
 
Does my right to my personnel file also include performance records and grievance records?
 
How soon does my employer have to make my personnel file available?
 
Can the employer / company charge me to receive my personnel file? ....A charge not to exceed the actual cost of reproduction
 
How should I make the request for my personnel file?
 
Can my lawyer make a request for my personnel file?
 
Does the company have a duty to maintain a copy of my personnel file? And if so, how long does the company have to keep a copy of my personnel file?

Steps to verify the identity of the employee

Why is Bill Turley asked to testify before the California State Senate and California Assembly on wage legislation? 
 
Can I recover money if my personnel file is not provided?
 
Can I obtain my personnel file if I am covered by a valid collective bargaining agreement (I’m in a Labor Union)?
 
Why would I want to get a copy of my personnel file?
 
What records have to be produced with my personnel file?
 
What if the company tries to hide records or file documents somewhere other than in my personnel file in order to avoid producing records?
 
What if my employer doesn’t produce my personnel file - what can I do then?
 
Can I get the $750 penalty if the employer/ company provides my personnel file after 30 days?
 
How do I get copies of documents I have signed from my employer (or ex- employer)?
 
How can I get a copy of an employment arbitration agreement in California? 

Can I request a copy of my wage records?

Does my right to my personnel file also include performance records and grievance records?

This right to inspect and obtain your personnel file under California law, includes your right to receive records relating to your performance or any grievance concerning you as a employee. California Labor Code Section 1198.5(a). Certainly any document that you signed as am employee for the company must be included in your right to inspect and obtain a copy of your personnel file.
 

How soon does my employer have to make my personnel file available?

The employer/ company has 30 days to make the records available for your inspection, from the date that you made the request for your personnel file under 1198.5. California Labor Code Section 1198.5(b). 

More precisely, employers must allow inspection or copying within thirty days of the request, or thirty-five days upon the mutual agreement of the employer and employee. California Labor Code Section  1198.5(b). 

Later in this article I discuss what you can do if your employer doesn't produce your personnel file or doesn't produce it within 30 days. 

Can the employer / company charge me to receive my personnel file? ....A charge not to exceed the actual cost of reproduction

Your employer can charge you a copy charge that is “not to exceed the actual cost of reproduction.”  As a practical matter, we have been making these requests for personnel files for years and we have never had an employer ask for a cost for copying the file.
 
What often occurs, is that we make the request and the employer will send a copy of the personnel file in the mail or they will email our office an electronic copy.
 

How should I make the request for my personnel file?

Under California law you can make a verbal or written request for a copy of your personnel file. As a practical matter, it my be difficult for your to prove that you made a verbal request for your personnel file.  That is, if your personnel file isn't produced. So, requesting it in writing is always better. 
 
Thus, you can send a letter. We use a what the law calls a "proof of service."   Meaning, an affidavit attesting that the request was sent to the company. 
 
You don't need to do this. I suggest that you send an email to your supervisor (and send a copy to the HR Department (if the company has an HR Department) or to an officer of the company requesting that the company produces your personnel file. 
 
This will usually suffice. You can copy yourself on the email in order to prove the personnel file request was sent by you. 
 
I suggest that you put in your email that you are making a request for your personnel file pursuant to California Labor Code Section 1198.5. 
 
At the same time, I also suggest that you request your wage records. 
 
However, as I tell you in the next section, I advise that you consult with an honest employment lawyer before you request your personnel file. 
 
 

Can my lawyer make a request for my personnel file?

California law allows your representative to make a request for your personnel file. This is how we usually obtain clients or potential client’s personnel files. 
 
If you are thinking your personnel file and/or wage records may be important to a potential claim or lawsuit against the company, I would recommend that you consult with a wage and hour law, labor lawyer and/or employment lawyer before you make the request for your personnel file and/or wage records. 
 
I say this because it usually wise for you to consult with an honest lawyer before you take any steps.  
 

Does the company have a duty to maintain a copy of my personnel file? And if so, how long does the company have to keep a copy of my personnel file?

Under California law, your employer has a duty to maintain a copy of each employee’s personnel records for at least 3 years from your date of termination. 
 

Steps to verify the identity of the employee

The employer can take steps to verify the identity of the employee. 
 
We have had instances of employers suggesting that they are not sure who the employee is. For example, if the employee has a common name such as John Smith, Jose Garcia,  or Susan Jones. 
 
Sometimes it is as easy as providing the employer the employee’s address and/or employee number.
 
Other times it takes a lawsuit to establish that the employee really was an employee.
 
We have several instances were employers insist that our client is not an employee of the company. At the end of the day, we usually win this issue. Other times, we discover that our client really worked for a related entity/ company or another company or entity on the job site. 
 

Why is Bill Turley asked to testify before the California State Senate and California Assembly on wage legislation? 

 
Bill Turley - Testifying at California State Senate on wage legislation
 

“Because Bill is known for always giving it to you straight. No sugar added. 

No lawyer talk, no double talk.

Just old fashioned, unsweetened truth.”

 

619-304-1000  

Can I recover money if my personnel file is not provided?

Under California law, if your employer refuses to permit you or your representative to inspect or copy your personnel file within to days, then you may recover a penalty of $750 from the employer. California Labor Code Section 1198.5(k). 
 

Can I obtain my personnel file if I am covered by a valid collective bargaining agreement (I’m in a Labor Union)?

Under California law, California Labor Code Section 1198.5 doesn’t apply if you are covered by a valid collective bargaining agreement (CBA) which provides for all of the foregoing:
 
 (1) The wages, hours of work, and working conditions of employees.
 (2) A procedure for the inspection and copying of personnel records.
 (3) Premium wage rates for all overtime hours worked.
 (4) A regular rate of pay of not less than 30 percent more than the state minimum wage rate.
 Cal Lab Code § 1198.5(q).
 

Why would I want to get a copy of my personnel file?

When we bring a wage claim and/or investigate a wage claim, it is routine that we request and obtain a copy of the employees personnel file. Strategically, depending on various factors and strategies in the case, we may obtain a personnel file before or after we have file the wage claim lawsuit.
 
Generally, we are interested in what is contained in the personnel file for a number of reasons. First, to find out what the company is saying about you. Second, in order to anticipate the company’s contentions and/or potential contentions in a wage claim. Third, to see if there is valid arbitration agreement. 
 
If you have a potential discrimination claim, retaliation claim, wrongful termination claim, harassment claim or any other type of employment claim - - obtaining a copy of your personnel file is an important step in the litigation process.
 
You can bring a wage claim in order to recover unpaid wages. 
It's always a happy day when you receive your settlement check!!
 
Smiling clients with their settlement checks from a California unpaid wages case.
 

What records have to be produced with my personnel file?

All records and/or personnel files which are used or have been used to determine that employee's qualifications for employment, promotion, additional compensation, or termination or other disciplinary action." Wellpoint Health Networks v. Superior Court (1997) 59 Cal.App.4th 110, 124.
 

What if the company tries to hide records or file documents somewhere other than in my personnel file in order to avoid producing records?

These type of company shenanigans are illegal under California law. 
 
As the court in the Wellpoint Health Networks  case stated:
 
The provision intends a broad definition of "personnel file" to preclude employers from assigning documents to files having some other name, and then refusing access to the documents on the ground that they are not contained in the "personnel file." To accomplish this, the statute defines an employee personnel file as anything "used to determine that employee's qualifications for employment, promotion, additional compensation, or termination or other disciplinary action" wherever located within the employee's various departments.
Wellpoint Health Networks v. Superior Court (1997) 59 Cal.App.4th 110, 124.
 

What if my employer doesn’t produce my personnel file - what can I do then?

We have had many instances where employers don’t respond to requests for personnel files. How we respond to the employer’s lack of response depends on strategies and time frames.
 
Not to give a lawyer-like response, but it depends on many factors.
 
We will usually request the personnel file at the same time we are requesting wage records under California law. Often times we will send a second request, requesting the personnel file and wage records.
 
We have even made a friendly call to the company before. Usually to the HR department.
 
Frankly, I am hesitant to disclose some of our strategies and considerations in what you should do if you request a personnel file (and wage records) and the company doesn’t respond to the request.
 
Again, not to get all lawyer like and/or evasive - but I am not concerned about sharing these considerations and strategies with you as I am with the company.
 
Thus, if you are an employee and you have requested your personnel file and/or your wage records from the company and the company has not provided a response you are invited to contact us and we will give you our take on how you should proceed, based upon the your situation, the time frames involved, your potential case and/or causes of action.
 

Can I get the $750 penalty if the employer/ company provides my personnel file after 30 days?

Yes. The employer/ company has 30 days to provide you with your personnel file.
 
In a recent District Court case the Court ruled as follows:
 
[The] Court finds that Plaintiff has carried his burden by a preponderance of the evidence that ADT failed to provide timely access to his employee file. Plaintiff's June 2, 2016 email made clear that he was seeking materials covered by section 1198.5, and the documents sent by ADT to Plaintiff demonstrated that ADT was aware that Plaintiff was seeking access to "personnel records maintained by [ADT] relating to [his] performance or to any grievance concerning me while I was employed at ADT . . . pursuant to California Labor Code Section 1198.5." (Tr. Exh. 14.)
Despite this, Plaintiff was not given access to his employee file until July 29, 2016. Accordingly, Plaintiff is entitled to the $750 penalty under section 1198.5(k).
Del Thibodeau v. ADT LLC (S.D.Cal. Apr. 18, 2019, No. 3:16-cv-02680-GPC-AGS) 2019 U.S.Dist.LEXIS 66603, at *27.
 

A few “takeaways” here

First, the employee "made clear" that he was requesting a copy of his personnel file "covered by section 1198.5."  Based upon this, it is important that when you request a copy of your personnel file that you say that you are making the request pursuant to California Labor Code Section 1198.5. I also suggest that you put in your request that 1198.5 requires the employer to make the records available and/or produce them within 30 days.  
 
Second, the employer was late by 27 days and the Court awarded the employee $750 penalty.
 
Third, the employee sent their request for his personnel file in an email and the court found that sending the request by email was sufficient.
 

How do I get copies of documents I have signed from my employer (or ex- employer)?

 
Labor Code Section 432 requires employers, upon request, to provide employees with copies of documents they signed in the course of their employment. Thus, I suggest that when you make your request for your personnel file, that you also request  your wage records (see below) and all documents that you signed in the course of your employment pursuant to California Labor Code Section 432
 
You can bring a PAGA claim for penalties if your employer doesn't comply with California Labor Code Section 432. 
 

How can I get a copy of an employment arbitration agreement in California? 

When you make a request for your personnel file, this obligates your employer to provide you with any employment arbitration agreement you may have signed with the employer. California Labor Code Section 1198.5.
 
 
However, based upon a "belts and suspenders" approach, I suggest that you also include California Labor Code Section 432 in your request for your personnel file
 

Can I request a copy of my wage records?

Yes, Under California law, you are entitled to receive a copy of your wage records. Here is an article about you obtaining your wage records under California law.
 

Bill represented the workers in the landmark

California Supreme Court case -

 Brinker vs Superior Court

(Maybe the most important wage case

for the protection of workers)

 

Bill represented the workers in the groundbreaking California Supreme Court case - Brinker vs. Superior Court. Many people say that the Brinker case is the most important California Supreme Court wage and hour case ever!

One of the worker protection concepts in the Brinker decision that keeps getting repeated again and again:

“When construing the California Labor Code, California courts are to adopt the construction that best gives effect to the purpose of the Legislature and Industrial Welfare Commission (IWC). The purpose of these laws is the protection of workers. In furtherance of that purpose, California courts are to liberally construe the Labor Code and Wage Orders to favor protection of workers.”

Brinker  v. Superior Court, 53 Cal. 4th 1004, 1027 (2012).

 

Need help right now? 

 
Call us at 619-304-1000  - If you call after regular business hours, when you leave a message, be sure to repeat your name and telephone number twice, so we get it correctly. And be sure to indicate whether it's okay if we respond by text.

Text us at 858-281-8008 - Be sure and put "new wage case" in your text.

Or leave us a message on this webpage
 
 

This article isn't legal advice

 
These discussions and/or examples are not legal advice. All legal situations are different. These testimonials, endorsements, photos and/or discussions do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, or your particular case/ situation. Every case is different. There are any number of reasons why class actions are not certified, not won and/or PAGA actions are not successful.

Just because we have gotten great results in so many other unpaid wage cases, doesn't guarantee in particular result in other cases. Including, your wage case. Every case is different.

 

William Turley
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“When I seek out professional advice, I don’t want B.S., I want it straight up. I figure you do also.”
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