Division of Labor Standards Enforcement considers records that are generally considered to be “personnel records” are those that are used or have been used to determine an employee’s qualifications for promotion, additional compensation, or disciplinary action, including termination.
The following are some examples of “personnel records” (this list is not all inclusive):
1. Application for employment
2. Payroll authorization form
3. Notices of commendation, warning, discipline, and/or termination
4. Notices of layoff, leave of absence, and vacation
5. Notices of wage attachment or garnishment
6. Education and training notices and records
7. Performance appraisals/reviews
8. Attendance records
California Labor Code section 1198.5 states that “Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee.” Labor Code section 1198.5(h) sets forth that this section does not apply to:
(1) records relating to the investigation of a possible criminal offense,
(2) letters of reference,
(3) ratings, reports, or records that were: obtained prior to the employee’s employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination.
In addition, employers may redact the names of “any nonsupervisory employee” contained in the personnel file being requested. Labor Code section 1198.5(g).
A former’s employee’s right to inspect a personnel file under section 1198.5 ends once a lawsuit is filed.
When a current or former employee files a lawsuit that “relates to a personnel matter against his or her employer or former employer” the right to inspect personnel records under Labor Code section 1198 ceases. Labor Code section 1198(n) and (o).
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