Employee Record Disclosure

It is fairly common for employers to receive requests for employee records, either by the employee or third parties. This may be alarming as this could be an indication that someone is investigating some aspect of the employer/employee relationship. If such a request is received, read it carefully, understand what is required and when, and promptly comply. Employers aren’t going to avoid liability by being coy or alleging the records don’t exist when there was a legal obligation to maintain. To the contrary, the employer’s risk will only escalate for not properly maintaining and disclosing as requested.

Moreover, depending on the requestor, the employer has varying degrees of responsibility to maintain employee privacy. Privacy considerations are beyond the scope of this article, but I suggest that if the employer has any concerns about the scope of the request and information required, that legal counsel be enlisted. Just as disclosing too little can be problematic, disclosing too much can result in liability as well.

Personnel Records

What Documents?

Per Labor Code section 1198.5, such records include information relating to employee performance and any grievance concerning the employee. The California Department of Industrial Relations further details personnel records within the meaning of the statute as applications for employment, notices of commendation, warning, discipline or termination, notices of wage attachment and garnishment, attendance records and performance appraisals.

How Long?

Labor Code section 1198.5 requires that employers maintain personnel records for at least three years after separation from employment.

Disclosure

An employee, or authorized representative, has the right to inspect and copy the employee’s records. Inspection requests must be in writing. Within 30 days of receipt of the written request, the employer must make the records available to the employee.

Liability

Failure to maintain the records or provide them in accordance with Labor Code section 1198.5 can result in fines up to $750 per violation. If the employee requires legal action to obtain the records, the employer can be required to pay attorneys’ fees and costs.

Payroll

What Documents?

Labor Code section 226 indicates these records shall include hours work as well as paid sick days accrued and used.

How Long?

Employers must maintain payroll records for at least three years according to Labor Code section 226. Since payroll records may be the subject of a claim for unpaid wages which has a 4-year statute of limitations, employers would be wise to keep the records for the additional year.

Disclosure

Employees, including former employees, have the right to inspect and copy payroll records. An employer has 21 days in which to respond to such an oral or written request. The Labor Commissioner must also be provided access to payroll records in the same 3-year timeframe as must an employee.

Liability

Depending on the nature of the violation, the employer can be penalized up to $4,000 plus costs and attorneys’ fees if legal action is required to compel disclosure.

Signed Employment Documents

What Documents?

Any instrument related to obtaining or holding employment that is signed by the employee must be disclosed upon request per Labor Code section 432.

How Long?

Arguably, the 3-year provision listed above in Labor Code section 1198.5 would apply to most, if not all, documents signed by an employee. Unfortunately, for any signed instrument that does not meet the definition of personnel records, there is no timeframe listed on how long the records must be maintained. Prudence would suggest three years to be safe.

Disclosure

Upon request, the employer must disclose such documents. Unlike personnel and payroll records, the statute does not indicate how the request must be made. Presumably then, the employee can make the request orally or in writing.

Liability

Failure to comply with a request is a misdemeanor that can result in fines up to $1,000 and imprisonment for up to 6 months according to Labor Code section 433.

Employers maintain any number of documents that may not fall within the three categories mentioned above. Arguably then these documents need not be disclosed upon the employee’s request. As a practical matter, it is advisable to partition documents considering these disclosure requirements. While implementing administrative processes to help differentiate between document types can be challenging, the result allows for prompt and complete compliance with any employee document disclosure request.

Note

There may be reasons why an employer would want to keep records longer than the timeframes established above. This information is intended to provide general guidelines, and I recommend talking to legal counsel to discuss any specific issues regarding document retention and disclosure. There are also some limited exceptions to the above guidelines that should be explored upon receipt of a disclosure request.