Legal Question in Employment Law in California

Access to Personnel File

Labor Code Sec. 1198.5(a), in describing the type of information available for inspection defines personnel files as: "files which are used or have been used to determinethe employees qualifications, for employment, promotion, additional compensation, or termination or other disciplinary action"

Thus, since information regarding termination is available, it would logically follow that an ex-employee would have access.

The labor commissioner would be the best source of a remedy - the current case load often causes cases to linger for a long period of time.

You have not stated why you wish to examine the file. If you are contemplating legal action - discuss the matter with an attorney experianced in such matters. There may be several options available to you.

The above is meant to assist in a general understading of the subject matter. IT IS NOT TO BE REGARDED AS LEGAL ADVICE AND NO ATTORNEY - CLIENT RELATIONSHIP HAS BEEN ESTABLISHED. Companies and individuals with particular questions should seek advice of counsel.

Re: Ex-Employer Refuses Access to Personnel File

California Labor Code section 1198.5 provides that every current or former employee "has the right to inspect personnel records that the employer maintains relating to the employee's performance or to any grievance concerning the employee." The statute provides little guidance regarding the scope of the records it includes. While many employers allow employees to review their entire personnel file, Section 1198.5 does not on its face require this. Rather, it seems to allow review only of certain personnel records related to performance and to any grievance involving the employee. And the Statute clearly carves out several types of documents that the employer need not allow an employee to review: (1) records related to the investigation of a possible criminal offense, (2) letters of reference, and (3) ratings or reports received prior to the employee's hiring, prepared by an examination committee, or connected to an examination utilized to determine a promotion.

Can an employee demand copies of his or her personnel records? Section 1198.5 only permits inspection of employment records. It does not require that the employer provide a copy of any of the records (though employers sometimes will simply provide a copy of the file where a former employee requests an inspection to avoid having a non-employee come to the facility. But another Labor Code provision may provide a limited right to obtain copies of records. Labor Code section 432 requires an employer to provide an employee a copy of any document he or she signs "relating to the obtaining or holding of employment" upon the employee's request. Arguably, this means that upon request an employer must provide a copy (which the employee presumably may remove from the employer's premises) of any employment-related document the employee actually signed. But what about termination records? An employer might argue that these documents do not relate to "the obtaining or holding of employment," however, the safest course until a court provides further guidance would be to assume that these documents fall within Section 432's scope.