Failure to Respond to a Request for an Employee’s Personnel File Now Costs $750

California employers have had a duty to maintain certain employee records and a duty to give current and former employees access to their personnel file.  Effective the 1st day of 2013, the California enacted several changes regarding the procedure and timing for responding to a current or former employee’s request for their personnel file.

Under the previous version of Labor Code section 1198.5, an employee had the right to inspect his/her personnel file within “a reasonable time” after making a request for any personnel records “relating to the employee’s performance.”  Now, employers must provide a copy of personnel records or make them available for inspection within 30 calendar days of a written request

Since the employers must respond to an employee’s request for personnel records within a specific time, Labor Code section 1198.5 now requires that these requests be made in writing.  Even though employers must provide a form that employees may use to request their personnel records, employees are not required to use it.

When the request for personnel records is made by a former employee, inspection or copies must be provided wherever the employer stores the records.  If the former employee wishes to receive copies of his/her personnel records by mail, the employer is entitled to be reimbursement for actual postal expenses.  Finally, former employees are entitled to only one personnel records demand per year.

Employers must maintain copies of personnel records for a minimum of three years after termination.  If, however, a current or former employee files a lawsuit that relates to a personnel matter, he/she loses any right to inspect or copy files until the lawsuit concludes.

Each failure to comply with an employee’s demand for his/her personnel records exposes an employer to: a $750 penalty; injunctive relief and attorneys’ fees.