Three California Labor Code sections deal with employment document retention and production. They are as follows: Labor Code §§ 226, 432, and 1198.5.
Labor Code § 432 requires an employer to give to an employee any document relating to the obtaining or holding employment signed by the employee whenever requested by the employee. Most employers rather not worry about what documents concern “obtaining or holding employment”, and, consequently, they retain all signed documents. Because Labor Code § 432 does not set a retention time limit, most employers retain those documents indefinitely and turn them over when an employee requests all the documents he or she has signed.
Labor Code § 226 requires an employer to maintain wage statements for three years. See Labor Code § 226(a). When an employee makes either a written or oral request to inspect or receive a copy of records pertaining to their employment, an employer must allow the employee to inspect or receive a copy of those records no later than 21 calendar from the date of the request. See Labor Code § 226(b) and (c). However, an employer has a duty to comply with the request as soon as practicable. See Labor Code § 226(c). If the employer fails to respond in a timely manner, then it may be required to pay a $750 penalty, costs, and attorneys’ fees. See Labor Code § 226(f) and (h). If the employer provides copies of the records, then it may charge the employee for reproduction costs.
Labor Code § 226(b) allows a current or former employee to “inspect or receive a copy of records pertaining to their employment”. Under that subsection, an employee has the apparent right to inspect or receive a copy of more records than just the wage statements described in Labor Code § 226(a).
Labor Code § 1198.5 requires an employer to keep personnel records for at least three years. See Labor Code § 1198.5(c)(1). The employee must request to inspect or receive a copy of personnel records in writing. See Labor Code § 1198.5(b)(2)(A)(i) and (ii). The employee may also request that the employer provide copies, but the employer can ask to be reimbursed for reproduction costs. See Labor Code § 1198.5(b)(1). The employer must comply within 30 calendar days from the date the employer receives a written request. See Labor Code § 1198.5(b)(1). An employer must comply with only one request per year from a former employee. See Labor Code § 1198.5(d). Personnel records are broadly defined as records “relating to the employee’s performance or to any grievance concerning the employee.” See Labor Code § 1198.5(a). Certain records are specifically excluded (i.e., records relating to the investigation of a possible criminal offense, letters of reference, etc). See Labor Code § 1198.5(h). If the employer fails to respond in a timely manner, then it may be required to pay a $750 fine, costs, and attorneys’ fees. See Labor Code § 1198.5(k) and (l).
Under Labor Code § 1198.5, an employer has fairly broad discretion to determine what to keep in a personnel file. However, Labor Code § 226(b) appears to allow an employee to have access to any records “pertaining to” his or her employment. Does Labor Code § 226(b) require an employer to maintain additional records beyond wage statements (see Labor Code § 226(a)), signed documents (see Labor Code § 432), and personnel records (see Labor Code § 1198.5(a)) so long as those records pertain to the employment? Arguably, it does. Unfortunately there is a lack of case law from the courts that interpret these statutes.
Similarly, if an employee orally requests records under Labor Code § 226(b), will the employer be required to provide all retained documents within 21 days, even personnel documents governed by Labor Code § 1198.5, which allows for a response within 30 days? Again, the answer is arguably yes, but again, the courts have not answered this question yet.
If you have any questions or concerns about responding to such requests, feel free to contact us now.
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