BILL NUMBER: AB 2674 INTRODUCED
BILL TEXT
INTRODUCED BY Committee on Labor and Employment (Assembly Members
Swanson (Chair), Alejo, Allen, and Yamada)
MARCH 5, 2012
An act to amend Section 1198.5 of the Labor Code, relating to
employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 2674, as introduced, Committee on Labor and Employment.
Employment records: right to inspect.
Under existing law, an employee has the right to inspect the
personnel records that his or her employer maintains relating to the
employee's performance or to any grievance concerning the employee.
This bill would require an employer to maintain personnel records
for a specified period of time and to provide a current or former
employee, or his or her representative, an opportunity to inspect and
receive a copy of those records within a specified period of time,
except during the pendency of a lawsuit filed by the employee or
former employer relating to a personnel matter. In addition, in the
event an employer violates these provisions, the bill would permit a
current or former employee or the Labor Commissioner to recover a
penalty of $750 from the employer, and would further permit a current
or former employee to obtain injunctive relief and attorney's fees.
Under existing law, an employer who fails to permit an employee to
inspect the employee's personnel records is guilty of a misdemeanor
punishable by a fine or imprisonment, as specified.
This bill would, instead, provide that a violation of the above
provisions requiring that personnel records be made available for
inspection constitutes an infraction. Although this bill would change
a violation of the above provisions requiring that personnel records
be made available for inspection from a misdemeanor to an
infraction, by expanding the scope of what would constitute an
infraction, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1198.5 of the Labor Code is amended to read:
1198.5. (a) 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.
(b) The employer shall make the contents of those personnel
records available to the for inspection to
the current or former employee , or his or her
representative, at reasonable intervals and at reasonable times
, but not later than 30 calendar days from the date of a
written or oral request, as specified, for these records. Upon a
written request from a current or former employee, or his or her
representative, the employer shall also provide a copy of the
personnel records, at a charge not to exceed the actual cost of
reproduction, not later than 30 calendar days from the date of the
request . Except as provided in paragraph (3)
(2) of subdivision (c), the employer
shall is not be required to
make those personnel records or a copy thereof available
at a time when the employee is actually required to render service to
the employer , if the requester is the employee .
(c) The employer shall do one of the following:
(1) Keep With regard to all employees,
maintain a copy of each employee's personnel records
at the place where the employee reports to work for a
period of not less than three years after termination of employment
.
(2) Make the With regard to current
employees, make a current employee's personnel records
available for inspection, and, if requested by the employee or
his or her representative, provide a copy thereof, at the place
where the employee reports to work within a reasonable
period of time following an employee's request , or at
another location agreeable to the employer and the
requester. If the employee is required to inspect or receive a copy
at a location other than the place where he or she reports to work,
no loss of compensation to the employee is permitted .
(3) Permit the employee to inspect the personnel records
(A) With regard to former
employees, make a former employee's personnel records available for
inspection, and, if requested by the employee or his or her
representative, provide a copy thereof, at the location where
the employer stores the personnel records, with no loss of
compensation to the employee records, unless the
parties mutually agree in writing to a different location. A former
employee may receive a copy by mail if he or she reimburses the
employer for actual postal expenses .
(B) (i) Notwithstanding subparagraph (A), if a former employee
seeking to inspect his or her personnel records was terminated for a
serious violation of law, or an employment-related policy, involving
harassment or workplace violence, the employer may comply with the
request by doing one of the following:
(I) Making the personnel records available to the former employee
for inspection at a location other than the workplace that is within
a reasonable driving distance of the former employee's residence.
(II) Providing a copy of the personnel records by mail.
(ii) Nothing in this subparagraph shall limit a former employee's
right to receive a copy of his or her personnel records.
(d) An employer is required to comply with only one request per
year by a former employee to inspect or receive a copy of his or her
personnel records.
(e) The employer may take reasonable steps to verify the identity
of a current or former employee or his or her authorized
representative. For purposes of this section, "representative" means
a person authorized in writing by the employee to inspect, or receive
a copy of, his or her personnel records.
(f) The employer may designate the person to whom a request is
made.
(g) Prior to making records specified in subdivision (a) available
for inspection or providing a copy of those records, the employer
may redact the name of any nonsupervisory employee contained therein.
(d)
(h) The requirements of this section shall
do 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:
(A) Obtained prior to the employee's employment.
(B) Prepared by identifiable examination committee members.
(C) Obtained in connection with a promotional examination.
(4) Employees who are subject to the Public Safety Officers
Procedural Bill of Rights, Chapter Rights
(Chapter 9.7 (commencing with Section 3300) of Division 4 of
Title 1 of the Government Code Code) .
(5) Employees of agencies subject to the Information Practices Act
of 1977 (Title 1.8 (commencing with Section 1798) of Part 4 of
Division 3 of the Civil Code).
(e) The Labor Commissioner may adopt regulations that determine
the reasonable times and reasonable intervals for the inspection of
records maintained by an employer that is not a public agency.
(f)
(i) If a public agency has established an independent
employee relations board or commission, an employee shall first seek
relief regarding any matter or dispute relating to this section from
that board or commission before pursuing any available judicial
remedy.
(g)
(j) In enacting this section, it is the intent of the
Legislature to establish minimum standards for the inspection
and the receipt of a copy of personnel records by employees.
Nothing in this section shall be construed to prevent the
establishment of additional rules for the inspection and the
receipt of a copy of personnel records that are established as
the result of agreements between an employer and a recognized
employee organization.
(k) If an employer fails to permit a current or former employee,
or his or her representative, to inspect or copy personnel records
within the times specified in this section, or times agreed to by
mutual agreement as provided in this section, the current or former
employee or the Labor Commissioner may recover a penalty of seven
hundred fifty dollars ($750) from the employer.
(l) A current or former employee may also bring an action for
injunctive relief to obtain compliance with this section, and may
recover costs and reasonable attorney's fees in such an action.
(m) Notwithstanding Section 1199, a violation of this section is
an infraction. Impossibility of performance, not caused by or
resulting from a violation of law, may be asserted as an affirmative
defense by an employer in any action alleging a violation of this
section.
(n) If an employee or former employee files a lawsuit that relates
to a personnel matter against his or her employer or former
employer, the right of the employee, former employee, or his or her
representative to inspect or copy personnel records under this
section ceases during the pendency of the lawsuit in the court with
original jurisdiction.
(o) For purposes of this section, a lawsuit "relates to a
personnel matter" if a current or former employee's personnel records
are relevant to the lawsuit.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.