Seyfarth Synopsis: Plaintiffs’ lawyers routinely invoke Labor Code provisions to conduct pre-litigation discovery by seeking employment records. For employers that scramble to comply with these often burdensome demands, we offer some practical tips on how to utilize the protections the law provides for employers and for the (perhaps) unsuspecting employees on whose purported behalf the request is made.

Have you received a lawyer’s letter containing a seemingly endless list of employment records demanded on behalf of a current or former employee? If so, count yourself in the majority. It is now commonplace for plaintiffs’ attorneys to bombard employers with demands for employment records before they launch a legal action against the company. The letter may also list a long series of alleged statutory violations, in search of a quick settlement and a big pay day.

This blog highlights some protections that employers have and shares some creative ways to respond the next time you receive a pre-litigation document demand.

A Quick Recap of the Law

Labor Code §§ 1198.5 and 226 are the two statutes most commonly used to seek employment records. Section 1198.5 entitles an employee, former employee, or her representative (usually an attorney) to inspect or receive a copy of personnel records relating to the employee’s performance or any grievance concerning the employee. The DLSE’s non-exhaustive list of examples of covered documents includes these items: applications for employment, performance reviews, commendations, warnings, disciplinary actions, and complaints about the employee.

Section 226 entitles an employee or an employee’s representative to seek the employee’s wage statement records. Employers responding to a Section 226 request may provide “a computer-generated record” in lieu of actual wage statement copies, provided that record contains all nine specified items of information, such as all hourly rates, hours worked, gross wages earned, etc. And, as of January 1, 2019, employers must provide the employee a copy of the wage statements or computer-generated record upon request, rather than just providing an opportunity for an “inspection.”

Employer must provide responsive documents within certain time limits—personnel records within 30 days and wage statement records within 21 days. A failure to timely respond to these requests could lead to penalties, civil litigation, and, in some cases, criminal liabilities.

We’ve previously written an in-depth analysis of these provisions and how to comply with record requests under them.

Is There Anything I Can Do Before Producing the Records?

Before blindly complying with requests and producing all the responsive documents, employers should consider verifying the identity of the person seeking the records and whether the individual is truly entitled to obtain them. Sections 1198.5 and 226 both expressly permit a company to take “reasonable steps” to verify the identity of the employee or the representative seeking the employment records. Under Section 1198.5(e), the employer “may take reasonable steps to verify the identity of a current or former employee or his or her authorized representative.” Under Section 226(b), the employer “may take reasonable steps to ensure the identity of a current or former employee.”

Why Should I Seek Verification Before Producing the Records?

There are several reasons to implement a verification process:

  • Employment records often contain sensitive and private information, such as social security numbers, financial data, and contact information. With the burgeoning threat of identity theft, employers should be mindful about producing sensitive employment records to strangers who claim to be the employee or the employee’s representative.
  • Employment record requests often put companies in a time crunch to compile and respond. By seeking verification, the company develops a basis for an argument that it should have more time to gather the requested information and complete its review of responsive documents.
  • The verification process helps ensure there is an existing relationship between the attorney and the current or former employee and that the employee has authorized the attorney to get the records on her behalf.
  • The verification process forces the attorney making the demand to re-engage with the client. In some cases, the employee may develop a change of heart and no longer wish to sue the company. When that happens, the attorney who claims to represent the employee cannot complete the verification request, and the company may never hear back from the attorney (or the employee) again.

So the next time you receive a letter from an employment lawyer, consider taking a moment to consider the best approach for your response. Because each request should be examined and evaluated on a case-by-case basis, please make sure you seek proper legal advice from a qualified employment lawyer.

If you would like assistance or have questions about the strategies for responding to employment records requests, please contact the authors or your favorite Seyfarth attorney.

Seyfarth Synopsis: Within the last few years, the California Legislature has amended laws related to an employee’s right to inspect personnel records, intending to ensure employees have access to those records. Since then, employers have seen more such requests, claims made before the Labor Commissioner, and even lawsuits over production of personnel files. We offer here some tips on how to comply.

What Is This Letter and What Do I Do About It?

Your company receives a letter from a former employee (or a lawyer) asking to inspect the personnel file or “employment records.” What (if anything) should you do in response?

How and when a California employer responds to these requests can have legal consequences. That’s right—employers can be sued (or even face criminal liability) over how they did, or did not, respond to personnel file requests.

The proper response depends, first, on what the employee is asking to inspect. In California, three principal statutes govern employee requests to inspect personnel records—Labor Code §§ 1198.5, 226, and 432. See below for details.

Labor Code § 1198.5

Section 1198.5 says that employees (and former employees) have the right to inspect personnel records maintained by the employer “related to the employee’s performance or to any grievance concerning the employee.” Employers must allow inspection or copying within thirty (30) days of the request, which can be made by the employee or their representative (often an attorney). That time period can be extended by five (5) days by mutual agreement.

Covered documents: Under the terms of the statute, it appears that documents such as performance reviews, commendation letters, disciplinary notices (“write-ups”), corrective action plans, and complaints about the employee would likely be covered.

The language in Section in 1198.5 is broad; it uses the terms “related to” and “concerning.” As a result, determining exactly what other documents might be covered can be a challenge. But the Labor Commissioner has issued some guidance on its website on what might be included in a “personnel file,” including, in addition to the above, things like an employment application, notices of leaves of absence or vacation, education and training notices, and attendance records. Unfortunately, there is no appellate case interpreting the scope of the current statutory language. So the overall scope of the statute still remains an open-ended question.

Nevertheless, the statute excludes certain files. For most employers, those files are (1) records about a criminal offense, (2) letters of reference, and (3) ratings, reports or records obtained before the employee’s employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination. In addition, employers can redact the names of any non-supervisory employee mentioned in the requesting employee’s file.

There are also situations when the statute does not apply. For example, if an employee (or former employee) files a lawsuit that “relates to a personnel matter” against the employer, then the right to inspect or copy the records ceases during the pendency of the lawsuit. The inclusion of this provision strongly suggests that Section 1198.5 is not a replacement for broad civil discovery.

What happens if I forget to produce records in time? If the employer does not permit the inspection or copying of these records in time, the employee may bring an action to obtain a court order (injunction) for the employer to comply with the statute. Employees are also entitled to a statutory penalty of $750 AND an award of attorneys’ fees and costs for bringing the action. And failure to comply is a criminal infraction. Ouch!

Labor Code § 226

Section 226 requires California employers to furnish employees with itemized wage statements that show nine (9) specific categories of information, such as all hourly rates, hours worked, gross wages earned, etc. The employer must provide these wage statements at the time employees are paid or semi-monthly. The specific information required and the entire text of the statute can be found here.

Covered documents: The scope of this one is easier than Section 1198.5. In addition to requiring itemized wage statements, this section also requires the employer to produce those wage statements to employees on request or a computer-generated report that shows all nine (9) categories of information required. Employers must make the records available to the employee within twenty-one (21) days.

What happens if I forget to produce records in time? Section 226 has remedies similar to those available under Section 1198.5. Section 226 also authorizes the employee to sue for a court order requiring the employer to produce the information and also a penalty of $750, and employees can also recover attorneys’ fees for bringing the lawsuit. Violation of the statute is also a criminal infraction. But unlike Section 1198.5, there is no exception for pending litigation. Yikes!

Labor Code § 432

Section 432 applies to any document that an employee (or job applicant) “signs” that is related to obtaining or holding employment. Upon request, the employer must provide those documents. Fortunately, this statute is simpler than the others. There is no timeline for production and there is no private right of action to enforce compliance.

But that does not mean that employers should ignore requests under this statute. As a practical matter, documents covered by this section can also be covered by Section 1198.5 (i.e., signed performance reviews or signed disciplinary write-ups). More importantly, failure to comply with such a request is a misdemeanor. And there is also no exception for pending litigation. Wow!

Covered documents: As mentioned, Section 432 covers any document the employee signed related to “obtaining” or “holding” employment. Examples include job applications, handbook acknowledgments, arbitration agreements, job descriptions, and any signed policy acknowledgments (anti-harassment, retaliation, discrimination, at-will employment, meal/rest break polices, etc.).

Workplace Solutions

Employers often wonder if they have to produce “every” record about an employee in response to these requests. As the statutes indicate, the answer is “no”— only documents that fall within the categories requested need to be produced. Employers must also remember to protect other important rights. Indeed, personnel issues often implicate attorney-client privilege, attorney work-product, proprietary information, and privacy issues. As a result, responding to personnel file requests often requires a case-by-case approach.

If you would like assistance in ensuring your company’s compliance with a personnel file request, or if you have any questions raised in this post, then please do not hesitate to contact the author or any other member of Seyfarth’s Labor and Employment Group.

Edited by Coby M. Turner.