Seyfarth Synopsis: Employees have a right to request their employment records, but which records can they request? And how quickly do employers have to produce them? And who should they be produced to? And is there a way for employers to actually use these requests to their advantage? We offer guidance on these questions and more below.
Hollywood’s annual award season is upon us with its usual glitz and glamour. Less glamorous? Producing employee personnel files and other employment records. But everybody knows that it’s the behind-the-scenes work that really makes the stars shine on the big night. Read on to learn more about how you can make sure your practices are camera-ready when the bright lights hit.
Learn Your Lines
You can’t deliver an Oscar-worthy performance without knowing the script cold. So you get a request for an employee’s personnel file. Line?
First, check who the request is from. Employees have the right to request a copy of their own records, but often employers receive requests from someone claiming to act on the employee’s behalf. Under Labor Code section 1198.5(e), employers have the right to take reasonable steps to verify the identity of a current or former employee, or their authorized representative before producing records.
Second, check what the request is for. Personnel files? Payroll records? Both? Or some dramatic rendering of the employee’s history of employment? Delivering a performance that your director didn’t ask for isn’t going to score you a nomination here. As we previously addressed in detail, Labor Code sections 1198.5, 226, and 432, and particular Wage Orders, only require you to produce specific information in response to specific requests. And Section 1198.5 says you don’t have to produce personnel records where an employee has filed a lawsuit against their employer. There is no need for you to ad lib and volunteer more!
Third, check the date of the request and know your response deadline. Payroll records must be produced to an employee within 21 days, and personnel records must be produced within 30 days, unless another date is agreed upon. While movie releases are often delayed, employers who miss a record request deadline can be subject to a $750 penalty and attorneys’ fees under Labor Code sections 1198.5 and 226.
Hitting the Red Carpet
Your performance is a hit of Barbenheimer magnitude and you’ve made it to the red carpet! Now its time to get to know the other stars, but just like when you’re producing personnel and payroll records, you’ll want to spend most of your time on the A-listers. While there is no statutory definition of what comprises “personnel records,” according to the DLSE the file should include:
- Employment applications;
- Arbitration agreements;
- Signed policy acknowledgments;
- Offer letters;
- Payroll authorization forms;
- Records of employee performance, including performance reviews and written warnings;
- Notices of layoff, leave of absence, vacation, or termination;
- Notices of wage garnishment;
- Education and training notices and records; and
- Wage records (i.e., wage statements, or a computer-generated report showing the information required on the wage statements by Labor Code section 226), assuming the employee has asked for them.
Watch too for requests specifically calling out Labor Code section 432—this statute requires you to produce anything that an employee signed related to obtaining or holding employment.
As a matter of practice, you’ll generally want to avoid your seat-fillers. For example, email communications generally should not be included in an employee’s personnel file unless there is a special reason (e.g., documenting a performance-related conversation). Similarly, medical records should be kept in a separate and confidential medical file rather than the personnel file.
You’ll also want to watch for documents that are black listed—documents that are expressly excluded from production by the relevant statutes, or otherwise should not be produced. Records related to the investigation of a possible criminal offense, letters of reference, and records obtained prior to an employee’s employment or obtained in connection with a promotional examination are not covered by the rules requiring the production of employment records. The names of any nonsupervisory employees contained within an employee’s personnel file can (and generally should) be redacted before the file’s production as well. Also make sure to not produce anything subject to attorney-client privilege.
The Winner Is …
Well, kind of.
Most HR personnel are probably as excited about a request for employment records as they are for a glass of lukewarm champagne. Responding to a request can be an administrative headache, and often a request is a precursor to a demand letter or complaint.
However, there can be a silver lining in even the biggest snub or upset. An employer pulling a file for production has the chance to audit that file for any issues that could turn into litigation on an individual or even a class action basis.
If you’re pulling an employee’s wage statements anyway, check them to ensure they contain all categories of information required by Labor Code section 226. If the employee has an arbitration agreement, check to see when it was last updated and consider whether it comports with the latest guidance from the U.S. and California Supreme Court. Do you see an agreement discussing employee uniform costs or usage, a non-compete, or some background check or drug testing forms signed last year that are on templates dated from the prior decade? Check with your Seyfarth attorney about whether you need to revisit those documents.
Responding to a request for employment records doesn’t have to take a Marvel-movie budget or be as confusing as Mulholland Drive. Train your frontline employees to recognize these requests so they don’t sit in a stack of papers until after the deadline to respond has passed. Consider what is being requested and to whom it ought to be produced. And, consult this checklist and talk with your favorite Seyfarth attorney to evaluate what to include and exclude in the production!