One question regularly confronted by employers is when a former employee requests copies of “their file.” Ostensibly, the employee is requesting a copy of their personnel file. However, the contents of a personnel file may not include all that which the former employee is seeking. Sometimes the employee is seeking payroll records, in addition to the personnel file. And sometimes the employee is seeking the underlying time cards that resulted in the payroll records that were generated for the employee.
It is not the employer’s obligation to discern what it is that the former employee is necessarily seeking in their request. Rather, the employer’s obligation is tied to the underlying statute on what needs to be produced and when. California law provides that a former employee has the right to inspect and/or receive a copy of their:
- Personnel records (i.e. records that relate to employee obtaining employment, their performance, and their termination)
- Payroll records (i.e. records showing gross wages earned, total hours worked, wage orders, piece rate units earned [if paid on a piece-rate basis], deductions, net wages earned, time period wages were earned per pay period, name and address of employer, name and address of employee)
- Timecards (i.e. records showing when the employee begins and ends each work period, meal period, rest period, shift interval, total hours worked)
Personnel records typically include the former employee’s: application for employment; new hire orientation and on-boarding; payroll authorization and changes; notices of commendation, corrective action, discipline, termination, lay-off, leave of absence, wage attachment/garnishment; proof of completion of training/certification; performance appraisals; and attendance records. Personnel records specifically do not include: investigations of a possible criminal offense; letters of recommendation or reference; ratings or records obtained prior to employment, in connection with a promotional examination, or prepared by examination committee members.
The obligation to produce or inspect is a little different for each item:
- Personnel Records – governed by Labor Code, § 1198.5. The copy need only be produced upon a written request. The employer can charge the employee the cost to reproduce a copy. And the copy must be produced within thirty (30) calendar days it receives the request.
- Payroll Records – governed by Labor Code, § 226. The copy needs to be produced upon a verbal or written request. The copy must be produced within twenty-one (21) calendar days it receives the request.
- Timecards – governed by section 7 of each of the Industrial Welfare Commission Wage Orders. The records need to be maintained at the place of employment. The records must be made available for inspection upon a reasonable request.
So, in connection with a request from a former employee a for a copy of their file, the employer should reply that all records are available for inspection. And that you can also produce a copy of the personnel records, provided you receive a written request and that the former employee will pay for the reasonable cost of reproducing the personnel records (and should do so within 30 days of receipt of the written request). The employer is not obligated to produce a copy of the payroll records unless the former employee actually requests them.
Furthermore, the employer is not required to provide a copy of the timecards at all. However, you must permit the employee to inspect the timecards in response to a reasonable request. The Division of Labor Standards Enforcement (DLSE) has opined that “reasonable” is during the regular business hours of the office where the records are usually and ordinarily maintained. DLSE has further declared that its enforcement policy considers “reasonable” to be an interval of once every year, unless there is reasonable cause to believe that the records have been altered in a manner that might adversely affect the interests of the employee, or the file contains information that is pertinent to an ongoing investigation affecting the employee, in which case more frequent inspections would be considered “reasonable.”
Note that if the employee brings an action against you, that you will likely need to produce the timecards at that time as a part of discovery. Furthermore, if the timecards are maintained by the employer in the former employee’s payroll records, then arguably the employer will need to produce a copy of the timecards as part of satisfying that request. Hence, it is important to vigilantly maintain separate files for separate records.
If an employer fails to permit the former (or even current) employee to inspect or copy personnel records within the times specified, or times agreed to by mutual agreement , the current employee, former employee, or the Labor Commissioner may recover a penalty of $750.00 from the employer. A former or current employee may also bring an action for injunctive relief to obtain compliance, and may recover costs and reasonable attorney’s fees.