BILL ANALYSIS Ó
AB 2674
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Date of Hearing: April 18, 2012
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 2674 (Swanson) - As Amended: April 9, 2012
SUBJECT : Employment records: right to inspect.
SUMMARY : Revises requirements of existing law concerning an
employee's right to inspect personnel records. Specifically,
this bill :
1 Allows employees to both inspect and receive a copy of their
personnel records, and establishes a 30 calendar day period
for compliance with an employee request to do so. This
timeframe may be extended to up to 35 calendar days by mutual
agreement.
2)Provides that the inspection and copying rights apply to both
current and former employees, and their representative, as
specified.
3)Provides that a request to inspect of receive a copy of
personnel records shall be made in either of the following
ways:
a) Written and submitted by the current or former employee
or his or her representative.
b) Written and submitted by the current or former employee
or his or her representative by completing an
employer-provided form.
4)Specifies that the employer-provided form shall be made
available to the employee or his or her representative upon
verbal request to the employee's supervisor or other
employer-designated individual (if known).
5)Specifies that the employer may take reasonable steps to
assure the identity of a current or former employee or his or
her representative, and defines "representative" to mean a
person authorized in writing by the employee to inspect or
receive a copy of his or her personnel records.
6)Specifies that an employer may redact the name of any
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non-supervisorial employee contained in the personnel records
prior to inspection or copying.
7)Requires an employer to maintain personnel records for at
least three years following an employee's termination of
employment.
8)For current employees, requires an employer to make the
employee's personnel records available for inspection and (if
requested) to provide a copy, at the place where the employee
reports to work or at another location agreeable to the
employer and employee. 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 shall be permitted.
9)For former employees, requires an employer to make the
employee's personnel records available for inspection, and (if
requested) provide a copy, at the location where the employer
stores the records. In addition, specifies that a former
employee shall have the option of receiving a copy by mail,
provided he or she reimburses the employer for the actual
postal expenses.
10)Provides that if a former employee was terminated for a
violation of law, or an employment-related policy involving
harassment or workplace violence, the employer at his or her
option may respond to a request either by making the records
available at a neutral location or providing a copy. However,
nothing shall limit a former employee's right to receive a
copy of such records in lieu of inspection.
11)Provides that, with respect to former employees, an employer
is required to comply with only one request per former
employee per year.
12)Allows for the recovery of a $750 penalty if the employer
fails to comply with these requirements.
13)Provides that a current or former employee may also bring an
action for injunctive relief and recover costs and reasonable
attorney's fees in such an action.
14)Specifies that a violation of these requirements is an
infraction, and impossibility of performance may be raised by
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an employer as an affirmative defense.
15)Provides that the inspection rights cease during the pendency
of a lawsuit which relates to a personnel matter.
FISCAL EFFECT : Unknown
COMMENTS : This bill is sponsored by the California Rural Legal
Assistance Foundation (CRLAF) and is designed to ensure that
current and former employees have a right to inspect and copy
their personnel files in order to defend their rights under
important state and federal statutes.
CRLAF argues that, under California law, it is a fundamental
right that employees must have access to their personnel records
in order to properly defend their rights under applicable
employment laws. However, existing Labor Code Section 1198.5
(which purports to protect this right) is extremely vague and
unclear. Unscrupulous employers and their attorneys use this
fact to their advantage to hide information that otherwise would
be disclosed. This type of uncertainty disadvantages employees,
who have not seen the records and therefore are not able to
question the employer's adverse employment actions against them.
Therefore, this bill seeks to clarify and improve current law
with respect to personnel records (Labor Code Section 1198.5) by
conforming it generally to similar protections already in
existing law dealing with payroll records (Labor Code Section
226).
According to CRLAF, the unmistakable purpose of the statute is
to assure that employees have an absolute right to know the
exact nature of information in their personnel file relating to
the "employee's performance or to any grievance concerning the
employee." In CRLAF's
experience, on-the-spot inspections alone are often inadequate
to accomplish this; in those cases, a right to copy the records
should be viewed as a natural extension of the right to inspect.
In addition, CRLAF argues that workers with a limited
understanding of English have no real "access" to their
personnel records when access is limited to inspection only.
For these limited-English speaking Californians, meaningful
inspection of their English-language personnel records is a
practical impossibility (unless they are provided a copy).
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Finally, CRLAF states that the right of employees to bring a
representative with them to inspect records needs clarification.
Some employers refuse to allow employees to bring a
representative with them (who could aid in translation or in
understanding complex documents in the worker's file). This
bill resolves that problem by permitting access/copying by the
employee or his or her legally designated representative.
PRIOR LEGISLATION :
This bill is similar to AB 1399 (Labor Committee) from 2011.
That bill was held in the Assembly Appropriations Committee.
This bill is also similar to AB 1707 (Labor Committee) from
2007. That measure was vetoed by Governor Schwarzenegger.
COMMITTEE STAFF COMMENT :
Last year, AB 1399 was opposed by the California Chamber of
Commerce. However, the sponsor negotiated a series of
amendments over the last several months. As a result, the
California Chamber of Commerce now has no position on this bill.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
California Labor Federation, AFL-CIO
California Rural Legal Assistance Foundation (sponsor)
Opposition
None on file.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091