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| SAMPLE LAWROOM MEMO |
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| 5203: Access to Personnel Files |
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TABLE OF CONTENTS
EMPLOYERS MUST HAVE ACCESSIBLE PERSONNEL FILES
APPLICANTS, EMPLOYEES, & EX-EMPLOYEES MAY ACCESS FILE
OUTSIDER'S INSPECTION OF PERSONNEL FILES
DOCUMENTS EMPLOYEES MAY INSPECT OR COPY
DOCUMENTS EMPLOYEES MAY NOT INSPECT OR COPY
LEGAL CONSEQUENCES
RELATED MEMOS/FORMS
| QUESTIONS |  | Who may inspect employees' personnel files? | | May job applicants have access to their papers even if never employed by a company? | | When may companies release personnel files to outside parties? | | May employees who were laid off inspect their personnel files? | | May employees on leaves of absence inspect their personnel files? | | May former employees inspect their personnel files? | | View all questions for this Memo |
EMPLOYERS MUST HAVE ACCESSIBLE PERSONNEL FILES |
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Companies are required to make and keep a variety of records about their employees. See Memo 6900 Employer's Recordkeeping Requirements and Form 9463 Policy - Business Records & Recordkeeping. The records that relate to an employee are typically considered part of that employee's personnel file. See Memo 5200 What Belongs in Personnel Files.
Note: Generally, a company may keep its personnel files anywhere as long as these records are accessible within a reasonable time. Companies typically keep personnel files either where employees work or at a central location within California.1
Because personnel files contain a variety of information, companies must take steps to protect the privacy of employees by securing these records from unauthorized access. See Memo 5200 What Belongs in Personnel Files and Memo 5220 Employee Privacy. Still, employers may let specific supervisors, personnel staff, and payroll staff have access to personnel files as long as they have a legitimate business reason and access is limited on a "need to know" basis.
Example: To determine Wanda's eligibility for a promotion, Bill wants to give Wanda's personnel file to the promotion committee. Wanda's file includes her job performance reviews and medical information. Bill should remove the medical information. The promotion committee only "needs to know" about Wanda's job performance.
In addition to a company's supervisors and managers, personnel records may also be sought by:
- applicants, employees, and ex-employees (discussed next), and
- other individuals or agencies outside the company (discussed later).
APPLICANTS, EMPLOYEES, & EX-EMPLOYEES MAY ACCESS FILE |
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Although personnel files belong to the employer, employees have a right to see many of the documents in their own personnel file.2
Generally, only employees may inspect their own personnel file. However, "employees" include people currently working as well as:3
- employees on leaves of absence,
- employees who quit, were fired, or laid off, and
- former employees who have potential legal claims against an employer involving the employment relationship.
Note: Job applicants may obtain copies of documents that they signed, even if they never became employees.4
Since former employees have a right to inspect their personnel files, employers must keep all files available for inspection after termination of employment. An employee's file should probably be kept for at least six years after termination. See Memo 6900 Employer's Recordkeeping Requirements.
Note: Although employees have a right to inspect their personnel files, employers may control certain aspects of the inspection. See Memo 5205 Employer's Right to Control Inspection & Copying.
OUTSIDER'S INSPECTION OF PERSONNEL FILES |
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Employers should not show employees' personnel files to anyone (except the employee) unless they are required to do so by law. Generally, employers should not release personnel files to outsiders unless there is a court order. So, employers need not show personnel files to an employee's representative (for example, a lawyer) unless that person has a subpoena.5 See Memo 5230 Subpoena for Employee Records.
Note: If a company wants to comply with an employee's request to release information to an outsider, it should have the employee sign a written authorization. See Form 9470 Reference Authorization & Liability Release.
There is one exception in which employers must permit an outsider to inspect an employee's personnel file. If a law enforcement agency asks an employer for information about a current or ex-employee who is applying to be a peace officer, employers must give the agency access to the personnel file. See Memo 5210 Pros and Cons of Employee References.
Note: However, employers only need to comply with written requests that are delivered by an authorized agency representative and that include the employee's notarized authorization releasing the employer from liability.
DOCUMENTS EMPLOYEES MAY INSPECT OR COPY |
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Depending on the type of document, employees may be entitled to inspect and copy items in their personnel files. See Memo 5200 What Belongs in Personnel Files.
Employee's Right to Inspect
Generally, employees may inspect their entire personnel file. This includes the right to see documents that are related to the employment relationship even if these documents are kept outside of the "official" personnel file or in a confidential file. Employees are entitled to see unofficial documents, including notes, logs, or diaries that are kept by supervisors for any job-related purpose.6
Employee's Right to Copy
Employees are also entitled to receive copies of certain documents.
Signed documents
Employees and job applicants (even if they never became employees) may receive a free copy of any employment-related document that they signed.7 Examples of signed documents include:
- employment applications and agreements,
- confidentiality agreements,
- authorizations, and
- performance appraisals.
Itemized wage statements
Employees are entitled to copies of their itemized wage deduction statements (their pay stubs). And, employers are required to keep these records for three years. However, employers may require employees to reimburse them for the actual cost of copying. See Memo 3865 Information Required on Paystubs.
Note: A special rule gives companies only 21 days to comply with a request to inspect or copy itemized wage statements.8
"Shopping investigation" reports
Employees may, under certain circumstances, receive copies of any undercover performance evaluation regarding their conduct, performance, or honesty. See Memo 5130 Conducting Undercover Performance Evaluations.
DOCUMENTS EMPLOYEES MAY NOT INSPECT OR COPY |
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Employees do not, however, have a right to see every document in their personnel file. So, employers may remove the following documents before an inspection.9
Letters of Reference
Employers need not let an employee see letters of reference, unless the employee subpoenas the letters during a lawsuit. Even then, however, employers may protect the identity of the people who wrote the letters.
Records Involving Possible Criminal Offenses
Employers are not required to permit employees to see company records regarding the investigation of a possible criminal offense.
Note: Investigations of simple misconduct and other non-criminal matters are part of the employees' personnel files and may be inspected by the employee.
Certain Ratings and Reports
An employee is also not entitled to see records that are:
- obtained by a company obtained prior to hiring the employee,
- prepared by an examination committee with identifiable members, or
- obtained in connection with a promotional examination.
LEGAL CONSEQUENCES |
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If employers release personnel files without authorization, they may be sued for invasion of privacy or defamation. See Memo 5220 Employee Privacy and Memo 8010 Defamation Claim Against Employer.
And, since most personnel files contain a variety of records, an employer may be guilty of the following offenses by denying access to one employee:
Right to Inspect
If employers deny employees the right to inspect their personnel files, employers may be charged with a misdemeanor. If convicted, employers may be fined at least $100, imprisoned for at least 30 days, or both.10
Copies of Signed Documents
If employers refuse to give individuals copies of documents that they signed, employers may be charged with a misdemeanor. If convicted, employers may be fined up to $1,000, imprisoned for up to six months, or both.11
Itemized Wage Deductions
If employers fail to make copies of employees' itemized wage deduction statements, employers may be fined $250 for each employee for a first violation and $1,000 for each employee for a subsequent violation.
And, if employers intentionally deny employees the right to see or copy their wage deduction statements within 21 days of a request, employers will owe employees $750 plus costs and attorney's fees. In addition, employers may face a misdemeanor charge that carries a $1,000 maximum fine, imprisonment for up to one year, or both.12
RELATED MEMOS/FORMS |
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To learn more about personnel files and employee information, read:
- Memo 4800 Overview of Collecting Employee Information
- Memo 5200 What Belongs in Personnel Files
- Memo 5205 Employer's Right to Control Inspection & Copying
- Memo 5215 Safeguards for Providing Employee References
- Memo 5220 Employee Privacy
- Memo 5230 Subpoena for Employee Records
- Form 9463 Policy - Business Records & Recordkeeping
- Form 9465 Employee's Request to Review Personnel File
- Form 9470 Reference Authorization & Liability Release
FOOTNOTES:
- Cal Labor Code §226; Cal DLSE Manual (2002) §42.3.
- Cal Labor Code §1198.5; Cal DLSE Enforcement Policies §50.
- Cal DLSE Memo No. 76-2 (1-15-76) §1.
- Cal Labor Code §432.
- Cal DLSE Memo No. 76-2 (1-15-76) §1, §10.
- Cal DLSE Policy & Procedure Memo 76-2 (1-15-76).
- Cal Labor Code §432.
- Cal Labor Code §226(c).
- Cal Labor Code §1198.5(d); Cal DLSE Enforcement Policies §50.3; Cal DLSE Memo No. 76-2 (1-15-76) §4.
- Cal Labor Code §1199.
- Cal Labor Code §23, §432, §433.
- Cal Labor Code §226(f), (g), §226.3, §226.6.
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