BILL NUMBER: AB 2674 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 28, 2012
PASSED THE ASSEMBLY AUGUST 29, 2012
AMENDED IN SENATE AUGUST 23, 2012
AMENDED IN SENATE AUGUST 20, 2012
AMENDED IN SENATE JULY 3, 2012
AMENDED IN ASSEMBLY APRIL 9, 2012
AMENDED IN ASSEMBLY MARCH 27, 2012
INTRODUCED BY Assembly Member Swanson
MARCH 5, 2012
An act to amend Sections 226 and 1198.5 of the Labor Code,
relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 2674, Swanson. Employment records: right to inspect.
(1) Existing law requires that every employer, semimonthly or at
the time of each payment of wages, furnish to each of his or her
employees, either as a detachable part of the check, draft, or
voucher paying the employee's wages, or separately when wages are
paid by personal check or cash, an accurate itemized statement in
writing showing specified items. Existing law requires an employer to
keep a copy of the statement and the record of deductions on file
for at least 3 years at the place of employment or at a central
location within the State of California.
This bill would provide that the term "copy," for purposes of
these provisions, includes a duplicate of the itemized statement
provided to an employee or a computer-generated record that
accurately shows all of the information that existing law requires to
be included in the itemized statement.
(2) 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. The bill would
provide that an employer is not required to comply with more than 50
requests for a copy of the above-described records filed by a
representative or representatives of employees in one calendar month.
The bill would provide that the above provisions shall not apply
with respect to an employee covered by a valid collective bargaining
agreement if the agreement provides, among other things, for a
procedure for inspection and copying of personnel records. 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.
(3) 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.
(4) This bill would incorporate changes to Section 226 of the
Labor Code proposed by AB 1744 and SB 1255, to be operative only if
this bill and either or both of those bills are chaptered and became
effective on or before January 1, 2013, and this bill is chaptered
last.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 226 of the Labor Code is amended to read:
226. (a) Every employer shall, semimonthly or at the time of each
payment of wages, furnish each of his or her employees, either as a
detachable part of the check, draft, or voucher paying the employee's
wages, or separately when wages are paid by personal check or cash,
an accurate itemized statement in writing showing (1) gross wages
earned, (2) total hours worked by the employee, except for any
employee whose compensation is solely based on a salary and who is
exempt from payment of overtime under subdivision (a) of Section 515
or any applicable order of the Industrial Welfare Commission, (3) the
number of piece-rate units earned and any applicable piece rate if
the employee is paid on a piece-rate basis, (4) all deductions,
provided that all deductions made on written orders of the employee
may be aggregated and shown as one item, (5) net wages earned, (6)
the inclusive dates of the period for which the employee is paid, (7)
the name of the employee and the last four digits of his or her
social security number or an employee identification number other
than a social security number, (8) the name and address of the legal
entity that is the employer and, if the employer is a farm labor
contractor, as defined in subdivision (b) of Section 1682, the name
and address of the legal entity that secured the services of the
employer, and (9) all applicable hourly rates in effect during the
pay period and the corresponding number of hours worked at each
hourly rate by the employee. The deductions made from payment of
wages shall be recorded in ink or other indelible form, properly
dated, showing the month, day, and year, and a copy of the statement
and the record of the deductions shall be kept on file by the
employer for at least three years at the place of employment or at a
central location within the State of California. For purposes of this
subdivision, "copy" includes a duplicate of the itemized statement
provided to an employee or a computer-generated record that
accurately shows all of the information required by this subdivision.
(b) An employer that is required by this code or any regulation
adopted pursuant to this code to keep the information required by
subdivision (a) shall afford current and former employees the right
to inspect or copy records pertaining to their employment, upon
reasonable request to the employer. The employer may take reasonable
steps to ensure the identity of a current or former employee. If the
employer provides copies of the records, the actual cost of
reproduction may be charged to the current or former employee.
(c) An employer who receives a written or oral request to inspect
or copy records pursuant to subdivision (b) pertaining to a current
or former employee shall comply with the request as soon as
practicable, but no later than 21 calendar days from the date of the
request. A violation of this subdivision is an infraction.
Impossibility of performance, not caused by or a result of a
violation of law, shall be an affirmative defense for an employer in
any action alleging a violation of this subdivision. An employer may
designate the person to whom a request under this subdivision will be
made.
(d) This section does not apply to any employer of any person
employed by the owner or occupant of a residential dwelling whose
duties are incidental to the ownership, maintenance, or use of the
dwelling, including the care and supervision of children, or whose
duties are personal and not in the course of the trade, business,
profession, or occupation of the owner or occupant.
(e) An employee suffering injury as a result of a knowing and
intentional failure by an employer to comply with subdivision (a) is
entitled to recover the greater of all actual damages or fifty
dollars ($50) for the initial pay period in which a violation occurs
and one hundred dollars ($100) per employee for each violation in a
subsequent pay period, not exceeding an aggregate penalty of four
thousand dollars ($4,000), and is entitled to an award of costs and
reasonable attorney's fees.
(f) A failure by an employer to permit a current or former
employee to inspect or copy records within the time set forth in
subdivision (c) entitles the current or former employee or the Labor
Commissioner to recover a seven-hundred-fifty-dollar ($750) penalty
from the employer.
(g) The listing by an employer of the name and address of the
legal entity that secured the services of the employer in the
itemized statement required by subdivision (a) shall not create any
liability on the part of that legal entity.
(h) An employee may also bring an action for injunctive relief to
ensure compliance with this section, and is entitled to an award of
costs and reasonable attorney's fees.
(i) This section does not apply to the state, to any city, county,
city and county, district, or to any other governmental entity,
except that if the state or a city, county, city and county,
district, or other governmental entity furnishes its employees with a
check, draft, or voucher paying the employee's wages, the state or a
city, county, city and county, district, or other governmental
entity shall use no more than the last four digits of the employee's
social security number or shall use an employee identification number
other than the social security number on the itemized statement
provided with the check, draft, or voucher.
SEC. 1.3. Section 226 of the Labor Code is amended to read:
226. (a) Every employer shall, semimonthly or at the time of each
payment of wages, furnish each of his or her employees, either as a
detachable part of the check, draft, or voucher paying the employee's
wages, or separately when wages are paid by personal check or cash,
an accurate itemized statement in writing showing (1) gross wages
earned, (2) total hours worked by the employee, except for any
employee whose compensation is solely based on a salary and who is
exempt from payment of overtime under subdivision (a) of Section 515
or any applicable order of the Industrial Welfare Commission, (3) the
number of piece-rate units earned and any applicable piece rate if
the employee is paid on a piece-rate basis, (4) all deductions,
provided that all deductions made on written orders of the employee
may be aggregated and shown as one item, (5) net wages earned, (6)
the inclusive dates of the period for which the employee is paid, (7)
the name of the employee and the last four digits of his or her
social security number or an employee identification number other
than a social security number, (8) the name and address of the legal
entity that is the employer and, if the employer is a farm labor
contractor, as defined in subdivision (b) of Section 1682, the name
and address of the legal entity that secured the services of the
employer, and (9) all applicable hourly rates in effect during the
pay period and the corresponding number of hours worked at each
hourly rate by the employee. The deductions made from payment of
wages shall be recorded in ink or other indelible form, properly
dated, showing the month, day, and year, and a copy of the statement
and the record of the deductions shall be kept on file by the
employer for at least three years at the place of employment or at a
central location within the State of California. For purposes of this
subdivision, "copy" includes a duplicate of the itemized statement
provided to an employee or a computer-generated record that
accurately shows all of the information required by this subdivision.
(b) An employer that is required by this code or any regulation
adopted pursuant to this code to keep the information required by
subdivision (a) shall afford current and former employees the right
to inspect or copy records pertaining to their employment, upon
reasonable request to the employer. The employer may take reasonable
steps to ensure the identity of a current or former employee. If the
employer provides copies of the records, the actual cost of
reproduction may be charged to the current or former employee.
(c) An employer who receives a written or oral request to inspect
or copy records pursuant to subdivision (b) pertaining to a current
or former employee shall comply with the request as soon as
practicable, but no later than 21 calendar days from the date of the
request. A violation of this subdivision is an infraction.
Impossibility of performance, not caused by or a result of a
violation of law, shall be an affirmative defense for an employer in
any action alleging a violation of this subdivision. An employer may
designate the person to whom a request under this subdivision will be
made.
(d) This section does not apply to any employer of any person
employed by the owner or occupant of a residential dwelling whose
duties are incidental to the ownership, maintenance, or use of the
dwelling, including the care and supervision of children, or whose
duties are personal and not in the course of the trade, business,
profession, or occupation of the owner or occupant.
(e) (1) An employee suffering injury as a result of a knowing and
intentional failure by an employer to comply with subdivision (a) is
entitled to recover the greater of all actual damages or fifty
dollars ($50) for the initial pay period in which a violation occurs
and one hundred dollars ($100) per employee for each violation in a
subsequent pay period, not to exceed an aggregate penalty of four
thousand dollars ($4,000), and is entitled to an award of costs and
reasonable attorney's fees.
(2) (A) An employee is deemed to suffer injury for purposes of
this subdivision if the employer fails to provide a wage statement.
(B) An employee is deemed to suffer injury for purposes of this
subdivision if the employer fails to provide accurate and complete
information as required by any one or more of items (1) to (9),
inclusive, of subdivision (a) and the employee cannot promptly and
easily determine from the wage statement alone one or more of the
following:
(i) The amount of the gross wages or net wages paid to the
employee during the pay period or any of the other information
required to be provided on the itemized wage statement pursuant to
items (2) to (4), inclusive, (6), and (9) of subdivision (a).
(ii) Which deductions the employer made from gross wages to
determine the net wages paid to the employee during the pay period.
Nothing in this subdivision alters the ability of the employer to
aggregate deductions consistent with the requirements of item (4) of
subdivision (a).
(iii) The name and address of the employer and, if the employer is
a farm labor contractor, as defined in subdivision (b) of Section
1682, the name and address of the legal entity that secured the
services of the employer during the pay period.
(iv) The name of the employee and only the last four digits of his
or her social security number or an employee identification number
other than a social security number.
(C) For purposes of this paragraph, "promptly and easily determine"
means a reasonable person would be able to readily ascertain the
information without reference to other documents or information.
(3) For purposes of this subdivision, a "knowing and intentional
failure" does not include an isolated and unintentional payroll error
due to a clerical or inadvertent mistake. In reviewing for
compliance with this section, the factfinder may consider as a
relevant factor whether the employer, prior to an alleged violation,
has adopted and is in compliance with a set of policies, procedures,
and practices that fully comply with this section.
(f) A failure by an employer to permit a current or former
employee to inspect or copy records within the time set forth in
subdivision (c) entitles the current or former employee or the Labor
Commissioner to recover a seven-hundred-fifty-dollar ($750) penalty
from the employer.
(g) The listing by an employer of the name and address of the
legal entity that secured the services of the employer in the
itemized statement required by subdivision (a) shall not create any
liability on the part of that legal entity.
(h) An employee may also bring an action for injunctive relief to
ensure compliance with this section, and is entitled to an award of
costs and reasonable attorney's fees.
(i) This section does not apply to the state, to any city, county,
city and county, district, or to any other governmental entity,
except that if the state or a city, county, city and county,
district, or other governmental entity furnishes its employees with a
check, draft, or voucher paying the employee's wages, the state or a
city, county, city and county, district, or other governmental
entity shall use no more than the last four digits of the employee's
social security number or shall use an employee identification number
other than the social security number on the itemized statement
provided with the check, draft, or voucher.
SEC. 1.5. Section 226 of the Labor Code is amended to read:
226. (a) Every employer shall, semimonthly or at the time of each
payment of wages, furnish each of his or her employees, either as a
detachable part of the check, draft, or voucher paying the employee's
wages, or separately when wages are paid by personal check or cash,
an accurate itemized statement in writing showing (1) gross wages
earned, (2) total hours worked by the employee, except for any
employee whose compensation is solely based on a salary and who is
exempt from payment of overtime under subdivision (a) of Section 515
or any applicable order of the Industrial Welfare Commission, (3) the
number of piece-rate units earned and any applicable piece rate if
the employee is paid on a piece-rate basis, (4) all deductions,
provided that all deductions made on written orders of the employee
may be aggregated and shown as one item, (5) net wages earned, (6)
the inclusive dates of the period for which the employee is paid, (7)
the name of the employee and the last four digits of his or her
social security number or an employee identification number other
than a social security number, (8) the name and address of the legal
entity that is the employer and, if the employer is a farm labor
contractor, as defined in subdivision (b) of Section 1682, the name
and address of the legal entity that secured the services of the
employer, and (9) all applicable hourly rates in effect during the
pay period and the corresponding number of hours worked at each
hourly rate by the employee and, beginning July 1, 2013, if the
employer is a temporary services employer as defined in Section
201.3, the rate of pay for each temporary services assignment and the
total hours worked for each legal entity. The deductions made from
payment of wages shall be recorded in ink or other indelible form,
properly dated, showing the month, day, and year, and a copy of the
statement and the record of the deductions shall be kept on file by
the employer for at least three years at the place of employment or
at a central location within the State of California. For purposes of
this subdivision, "copy" includes a duplicate of the itemized
statement provided to an employee or a computer-generated record that
accurately shows all of the information required by this
subdivision.
(b) An employer that is required by this code or any regulation
adopted pursuant to this code to keep the information required by
subdivision (a) shall afford current and former employees the right
to inspect or copy records pertaining to their employment, upon
reasonable request to the employer. The employer may take reasonable
steps to ensure the identity of a current or former employee. If the
employer provides copies of the records, the actual cost of
reproduction may be charged to the current or former employee.
(c) An employer who receives a written or oral request to inspect
or copy records pursuant to subdivision (b) pertaining to a current
or former employee shall comply with the request as soon as
practicable, but no later than 21 calendar days from the date of the
request. A violation of this subdivision is an infraction.
Impossibility of performance, not caused by or a result of a
violation of law, shall be an affirmative defense for an employer in
any action alleging a violation of this subdivision. An employer may
designate the person to whom a request under this subdivision will be
made.
(d) This section does not apply to any employer of any person
employed by the owner or occupant of a residential dwelling whose
duties are incidental to the ownership, maintenance, or use of the
dwelling, including the care and supervision of children, or whose
duties are personal and not in the course of the trade, business,
profession, or occupation of the owner or occupant.
(e) An employee suffering injury as a result of a knowing and
intentional failure by an employer to comply with subdivision (a) is
entitled to recover the greater of all actual damages or fifty
dollars ($50) for the initial pay period in which a violation occurs
and one hundred dollars ($100) per employee for each violation in a
subsequent pay period, not exceeding an aggregate penalty of four
thousand dollars ($4,000), and is entitled to an award of costs and
reasonable attorney's fees.
(f) A failure by an employer to permit a current or former
employee to inspect or copy records within the time set forth in
subdivision (c) entitles the current or former employee or the Labor
Commissioner to recover a seven-hundred-fifty-dollar ($750) penalty
from the employer.
(g) The listing by an employer of the name and address of the
legal entity that secured the services of the employer in the
itemized statement required by subdivision (a) shall not create any
liability on the part of that legal entity.
(h) An employee may also bring an action for injunctive relief to
ensure compliance with this section, and is entitled to an award of
costs and reasonable attorney's fees.
(i) This section does not apply to the state, to any city, county,
city and county, district, or to any other governmental entity,
except that if the state or a city, county, city and county,
district, or other governmental entity furnishes its employees with a
check, draft, or voucher paying the employee's wages, the state or a
city, county, city and county, district, or other governmental
entity shall use no more than the last four digits of the employee's
social security number or shall use an employee identification number
other than the social security number on the itemized statement
provided with the check, draft, or voucher.
SEC. 1.7. Section 226 of the Labor Code is amended to read:
226. (a) Every employer shall, semimonthly or at the time of each
payment of wages, furnish each of his or her employees, either as a
detachable part of the check, draft, or voucher paying the employee's
wages, or separately when wages are paid by personal check or cash,
an accurate itemized statement in writing showing (1) gross wages
earned, (2) total hours worked by the employee, except for any
employee whose compensation is solely based on a salary and who is
exempt from payment of overtime under subdivision (a) of Section 515
or any applicable order of the Industrial Welfare Commission, (3) the
number of piece-rate units earned and any applicable piece rate if
the employee is paid on a piece-rate basis, (4) all deductions,
provided that all deductions made on written orders of the employee
may be aggregated and shown as one item, (5) net wages earned, (6)
the inclusive dates of the period for which the employee is paid, (7)
the name of the employee and the last four digits of his or her
social security number or an employee identification number other
than a social security number, (8) the name and address of the legal
entity that is the employer and, if the employer is a farm labor
contractor, as defined in subdivision (b) of Section 1682, the name
and address of the legal entity that secured the services of the
employer, and (9) all applicable hourly rates in effect during the
pay period and the corresponding number of hours worked at each
hourly rate by the employee and, beginning July 1, 2013, if the
employer is a temporary services employer as defined in Section
201.3, the rate of pay for each temporary services assignment and the
total hours worked for each legal entity. The deductions made from
payment of wages shall be recorded in ink or other indelible form,
properly dated, showing the month, day, and year, and a copy of the
statement and the record of the deductions shall be kept on file by
the employer for at least three years at the place of employment or
at a central location within the State of California. For purposes of
this subdivision, "copy" includes a duplicate of the itemized
statement provided to an employee or a computer-generated record that
accurately shows all of the information required by this
subdivision.
(b) An employer that is required by this code or any regulation
adopted pursuant to this code to keep the information required by
subdivision (a) shall afford current and former employees the right
to inspect or copy records pertaining to their employment, upon
reasonable request to the employer. The employer may take reasonable
steps to ensure the identity of a current or former employee. If the
employer provides copies of the records, the actual cost of
reproduction may be charged to the current or former employee.
(c) An employer who receives a written or oral request to inspect
or copy records pursuant to subdivision (b) pertaining to a current
or former employee shall comply with the request as soon as
practicable, but no later than 21 calendar days from the date of the
request. A violation of this subdivision is an infraction.
Impossibility of performance, not caused by or a result of a
violation of law, shall be an affirmative defense for an employer in
any action alleging a violation of this subdivision. An employer may
designate the person to whom a request under this subdivision will be
made.
(d) This section does not apply to any employer of any person
employed by the owner or occupant of a residential dwelling whose
duties are incidental to the ownership, maintenance, or use of the
dwelling, including the care and supervision of children, or whose
duties are personal and not in the course of the trade, business,
profession, or occupation of the owner or occupant.
(e) (1) An employee suffering injury as a result of a knowing and
intentional failure by an employer to comply with subdivision (a) is
entitled to recover the greater of all actual damages or fifty
dollars ($50) for the initial pay period in which a violation occurs
and one hundred dollars ($100) per employee for each violation in a
subsequent pay period, not to exceed an aggregate penalty of four
thousand dollars ($4,000), and is entitled to an award of costs and
reasonable attorney's fees.
(2) (A) An employee is deemed to suffer injury for purposes of
this subdivision if the employer fails to provide a wage statement.
(B) An employee is deemed to suffer injury for purposes of this
subdivision if the employer fails to provide accurate and complete
information as required by any one or more of items (1) to (9),
inclusive, of subdivision (a) and the employee cannot promptly and
easily determine from the wage statement alone one or more of the
following:
(i) The amount of the gross wages or net wages paid to the
employee during the pay period or any of the other information
required to be provided on the itemized wage statement pursuant to
items (2) to (4), inclusive, (6), and (9) of subdivision (a).
(ii) Which deductions the employer made from gross wages to
determine the net wages paid to the employee during the pay period.
Nothing in this subdivision alters the ability of the employer to
aggregate deductions consistent with the requirements of item (4) of
subdivision (a).
(iii) The name and address of the employer and, if the employer is
a farm labor contractor, as defined in subdivision (b) of Section
1682, the name and address of the legal entity that secured the
services of the employer during the pay period.
(iv) The name of the employee and only the last four digits of his
or her social security number or an employee identification number
other than a social security number.
(C) For purposes of this paragraph, "promptly and easily determine"
means a reasonable person would be able to readily ascertain the
information without reference to other documents or information.
(3) For purposes of this subdivision, a "knowing and intentional
failure" does not include an isolated and unintentional payroll error
due to a clerical or inadvertent mistake. In reviewing for
compliance with this section, the factfinder may consider as a
relevant factor whether the employer, prior to an alleged violation,
has adopted and is in compliance with a set of policies, procedures,
and practices that fully comply with this section.
(f) A failure by an employer to permit a current or former
employee to inspect or copy records within the time set forth in
subdivision (c) entitles the current or former employee or the Labor
Commissioner to recover a seven-hundred-fifty-dollar ($750) penalty
from the employer.
(g) The listing by an employer of the name and address of the
legal entity that secured the services of the employer in the
itemized statement required by subdivision (a) shall not create any
liability on the part of that legal entity.
(h) An employee may also bring an action for injunctive relief to
ensure compliance with this section, and is entitled to an award of
costs and reasonable attorney's fees.
(i) This section does not apply to the state, to any city, county,
city and county, district, or to any other governmental entity,
except that if the state or a city, county, city and county,
district, or other governmental entity furnishes its employees with a
check, draft, or voucher paying the employee's wages, the state or a
city, county, city and county, district, or other governmental
entity shall use no more than the last four digits of the employee's
social security number or shall use an employee identification number
other than the social security number on the itemized statement
provided with the check, draft, or voucher.
SEC. 2. 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) (1) The
employer shall make the contents of those personnel records available
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 the employer receives a
written request, unless the current or former employee, or his or
her representative, and the employer agree in writing to a date
beyond 30 calendar days to inspect the records, and the agreed-upon
date does not exceed 35 calendar days from the employer's receipt of
the written request. 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 the employer receives the request, unless the current or
former employee, or his or her representative, and the employer agree
in writing to a date beyond 30 calendar days to produce a copy of
the records, as long as the agreed-upon date does not exceed 35
calendar days from the employer's receipt of the written request.
Except as provided in paragraph (2) of subdivision (c), the employer
is not 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.
(2) (A) For purposes of this section, a request to inspect or
receive a copy of personnel records shall be made in either of the
following ways:
(i) Written and submitted by the current or former employee or his
or her representative.
(ii) Written and submitted by the current or former employee or
his or her representative by completing an employer-provided form.
(B) An employer-provided form shall be made available to the
employee or his or her representative upon verbal request to the
employee's supervisor or, if known to the employee or his or her
representative at the time of the request, to the individual the
employer designates under this section to receive a verbal request
for the form.
(c) The employer shall do all of the following:
(1) With regard to all employees, maintain a copy of each employee'
s personnel records for a period of not less than three years after
termination of employment.
(2) 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, 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) (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 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
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.
(h) The requirements of this section 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 9.7 (commencing with Section 3300)
of Division 4 of Title 1 of the Government 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).
(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.
(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.
(p) An employer is not required to comply with more than 50
requests under this section to inspect and receive a copy of
personnel records filed by a representative or representatives of
employees in one calendar month.
(q) This section does not apply to an employee covered by a valid
collective bargaining agreement if the agreement expressly provides
for all of the following:
(1) The wages, hours of work, and working conditions of employees.
(2) A procedure for the inspection and copying of personnel
records.
(3) Premium wage rates for all overtime hours worked.
(4) A regular rate of pay of not less than 30 percent more than
the state minimum wage rate.
SEC. 3. 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.
SEC. 4. (a) Section 1.3 of this bill incorporates amendments to
Section 226 of the Labor Code proposed by both this bill and SB 1255.
It shall only become operative if (1) both bills are enacted and
become effective on or before January 1, 2013, (2) each bill amends
Section 226 of the Labor Code, (3) AB 1744 is not enacted or as
enacted does not amend that section, and (4) this bill is enacted
after SB 1255, in which case Sections 1, 1.5 and 1.7 of this bill
shall not become operative.
(b) Section 1.5 of this bill incorporates amendments to Section
226 of the Labor Code proposed by both this bill and AB 1744. It
shall only become operative if (1) both bills are enacted and become
effective on or before January 1, 2013, (2) each bill amends Section
226 of the Labor Code, (3) SB 1255 is not enacted or as enacted does
not amend that section, and (4) this bill is enacted after AB 1744 in
which case Sections 1, 1.3 and 1.7 of this bill shall not become
operative.
(c) Section 1.7 of this bill incorporates amendments to Section
226 of the Labor Code proposed by this bill, AB 1744, and SB 1255. It
shall only become operative if (1) all three bills are enacted and
become effective on or before January 1, 2013, (2) all three bills
amend Section 226 of the Labor Code, and (3) this bill is enacted
after AB 1744 and SB 1255, in which case Sections 1, 1.3 and 1.5 of
this bill shall not become operative.