By: Sherwood Tung

In California, employers must maintain a copy of each employee's personnel records for at least three years after termination of employment. Current and former employees, or their representatives, have the right to inspect and receive a copy of the "personnel records" that employers maintain relating to:

• The employees' performance.
• Any grievance that concerns the employees.

However, the applicable statute does not define "personnel records," leaving a question as to how broadly that term should be interpreted.  Generally, these records are likely located in the employee's personnel file, but the statute is worded broadly enough that the term may cover records located elsewhere and not just in the personnel file.

Form of Request

California employers must maintain a written form for employees to use when requesting access to their personnel records (no verbal request).  The form must be provided to employees when they make a verbal request to their supervisor, or to the person designated by the employer to receive such requests.  However, the use of employer-provided form is not mandatory, as the employees can either complete the employer-provided form or use another writing.

Reviewing Personnel Records

California employers must provide access to, or copies of, personnel records to the requesting employee within 30 calendar days, or within 35 calendar days if the employee or representative agrees.  In the case of providing access to such records, employers may also specify:

• The time and location for viewing an employee's personnel records; and
• That the viewing must take place during an employee's non-working hours.

However, if an employer specified a time and place for viewing during an employee's work hours, the employee's pay cannot be docked for any time spent inspecting the records.

Scope of Access and Limitations

In California, employees are entitled to all personnel records that relate to their performance, or any grievance concerning them. However, as mentioned above, the applicable statute does not further define what may be considered personnel records.  Therefore, best practice is to retain all performance or grievance-related documents, including an employee's:

• Application for employment,
• Payroll authorization form,
• Notices of commendation, warning, discipline, or termination,
• Notices of layoff, leave of absence, and vacation,
• Notices of wage attachment or garnishment,
• Education and training notices and records,
• Performance appraisals and reviews, and
• Attendance records.

In addition, California law excludes certain things from examination by current or former employees or their representatives, including:

• The names of non-supervisory employees appearing in an employee's personnel record,
• Records relating to the investigation of a possible criminal offense,
• Letters of reference, and
• Ratings, reports, or records that were:
  • obtained before the employee's employment;
  • prepared by identifiable examination committee members; or
  • obtained in connection with a promotional examination.

Importantly, an employee's right to inspect and obtain a copy of the employee's personnel file also ceases when a lawsuit filed by the employee against the employer or former employer relating to a "personnel matter" is pending.

Frequency of Requests

Finally, California employers should consider creating a policy that spell out the maximum number of requests that they will comply within a given year or other time period, as provided by California law.  California employers are not required to comply with more than:

• One request per year by a former employee.
• 50 requests per calendar month filed by one or more representatives of employees.

Having the right Personnel File Access Policy is important for California employers.  While this article is not to be treated as legal advice, it does provide a general overview of related topics.  After reading this introduction, California employers are encouraged to contact their employment attorneys, so their attorneys can assist them in coming up with customized policies that are right for them.