©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 334 10. Employee Access to Personnel Records 10.1 Personnel Records California employers must permit current and former employees, or their representatives, to inspect and obtain a copy of the “personnel records” maintained by the employer relating to the employee’s performance or to any grievance concerning the employee. The deadline is 30 days from the employer’s receipt of the employee’s written request, not necessarily the date of the request, although the employee (or the representative) and the employer may agree to extend this deadline to 35 days.1 The request must be in writing, and employers may create a request form that employees can choose to use.2 The form must be made available to employees, or to representatives, upon a verbal request.3 For current employees, the employer must, within 30 days, or up to 35 days by mutual agreement, (a) make the personnel records available where the employee reports to work or another place mutually agreed upon by the employer and the requester, or (b) permit the employee to inspect the personnel records where the records are stored, with no loss of pay for the employee.4 For former employees, employers must maintain personnel records for four years after termination of employment.5 To make records available to former employees, employers may use the location where records are stored, use a mutually agreed-upon location, use the mail (and be reimbursed for postage), or—for employees terminated for harassment or workplace violence—use a location within a reasonable driving distance from the employee’s residence or provide a copy of the records by mail.6 As to former employees, employers need only comply with one yearly request to inspect or copy; and as to an employee representative, employers need only comply with 50 requests per month.7 Employer obligations do not apply during a lawsuit against the employer, or to employees covered by a valid collective bargaining agreement with specified provisions.8 “Personnel records” under Labor Code section 1198.5 do not include records relating to an investigation of criminal conduct, letters of reference, ratings, reports, or records obtained before the employee’s employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination,9 and employers can redact names of nonsupervisory employees from personnel records before submitting a copy or permitting an inspection.10 Failure to timely comply entitles the employee or the Labor Commissioner to recover a penalty of $750, plus injunctive relief and attorney fees.11 10.2 Signed Employee Instruments California employers must provide to an employee or a job applicant (and, presumably, a former employee), upon request, a copy of any document that the employee has signed concerning the employee’s employment or application for employment.12 The request need not be written, and there is no specified time for complying and no prescribed penalty.13 California employers should think about any signed documents related to “obtaining” or “holding” employment.14 Examples include job applications, handbook acknowledgments, arbitration agreements, job descriptions, and any signed policy acknowledgments (anti-harassment, retaliation, discrimination, at-will
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