Q. An employee has asked to see his records. How soon do we have to respond?
A. Labor Code section 1198.5 governs an employee’s right to inspect his or her personnel file. Recently, the California Legislature amended section 1198.5 to require employers to keep personnel records of employees for at least three years after the termination. The change, mandated by AB 2674, went into effect on Jan. 1, 2013.
Labor Code section 1198.5 did not contain a deadline for the employer’s response to a request to review files. Under AB 2674, however, an employer must allow a current or former employee (or a legal representative) to review or obtain copies of personnel records relating to performance or any grievance within 30 days of the employee’s or representative’s request. If the employer agrees in writing, the review or production can occur within 35 days of the request.
There are a few new twists on the old rule:
- The employer need only honor one request per year from a former employee.
- The employer is not required to comply with more than 50 requests from employee representatives in one calendar month.
- The rule doesn’t apply if the parties are involved in employment-related litigation.
- The employer faces a $750 penalty for failure to comply with inspection requests.
Advice: Ensure that requests for personnel records are addressed within the new time limits of AB 2674.
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