BILL ANALYSIS Ó
AB 2674
Page 1
Date of Hearing: May 2, 2012
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 2674 (Swanson) - As Amended: April 9, 2012
Policy Committee: Labor and
Employment Vote: 5-1
Urgency: No State Mandated Local Program:
Yes Reimbursable: Yes
SUMMARY
This bill amends provisions of existing law related to an
employee's right to inspect or copy personnel records.
Specifically, this bill:
1)Establishes the right of every current and former employee to
inspect and receive copies of his or her personnel record and
requires an employer to comply within 30 calendar days of this
request. Further provides an exemption to this requirement,
if the employee and the employer agree in writing to a date
beyond 30 calendar days (maximum extension is 35 calendar
days).
2)Requires the employer, upon written request from the current
or former employee, to provide a copy of the employee's
personnel records not later than 30 calendar days from the
date of the request, unless a written agreement is made
between the parties to extend this timeline to a maximum of 35
calendar days. This measure requires an employer to provide
this information at a charge not to exceed the actual cost of
reproducing this information.
3)Requires a current or former employee's request to inspect or
receive a copy of his or her personnel records to be made in
either writing or by completing an employer-provided form, as
specified.
4)Requires an employer to do all of the following:
a) Maintain a copy of all personnel records for a minimum
of three years after the termination of the employee.
AB 2674
Page 2
b) Make a current employee's record available for
inspection, or provide copies, at the request of the
employee. Further requires the records to be available at
the employee's workplace or another location agreeable to
the employer and the requester, as specified.
5)Establishes similar provisions for former employers. The
employer, however, is required to make the records available
at the location where the records are, unless the parties
agree in writing on a different location.
6)Authorizes a current or former employee, or the Labor
Commission (LC), to recover a penalty of $750 from an employer
who fails to permit current or former employees from
inspecting or copying personnel records pursuant to this
measure. Also, authorizes employees to bring an action for
injunctive relief to compliance with these provisions,
including attorney's fees.
7)Establishes an infraction for violations of provisions in this
measure and authorizes impossibility of performance (not
caused from a violation of law) to be asserted as an
affirmative defense by the employer, as specified. If an
employee (current or former) files a lawsuit related to a
personnel matter, this measure further requires employee
access to personnel records to cease, as specified.
FISCAL EFFECT
1) Special fund (Labor Enforcement Compliance Fund) costs,
likely between $40,000 and $110,000, to the Division of
Labor Standards Enforcement to process claims filed against
employers for compliance with this measure. This increased
staff cost will be added to the annual surcharge all
employers pay to support this fund.
2) Unknown, likely minor, State trial court costs as a
result of creating a new cause of action for injunctive
relief.
COMMENTS
1)Existing law specifies that every employee has the right to
inspect (but not copy) the personnel records that the employer
maintains relating to the employee's performance and any
AB 2674
Page 3
grievances concerning the employee. It also requires the
employer to make the contents of those personnel records
available to the employee at reasonable intervals and at
reasonable times. Employers can either keep the personnel
records at the place where the employee reports to work, or
can keep them elsewhere as long as they can be delivered to
the employee's place of work within a reasonable period of
time.
Statute also authorizes the LC to adopt regulations that
determine the reasonable times intervals for private employers
to provide these personnel records.
2)Rationale . According to the California Rural Legal Assistance
Foundation, sponsor of this bill, "The unmistakable purpose of
Ýexisting law] 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.' A right to copy the
records should be viewed as a natural extension of the right
to inspect."
This bill amends provisions of existing law related to an
employee's right to inspect personnel records.
3)Previous legislation .
a) AB 1399 (Committee on Labor and Employment), similar to
this measure, was held on this committee's Suspense File in
May 2011.
b) AB 1707 (Labor and Employment Committee, similar to this
measure, was vetoed by Governor Schwarzenegger in October
2007 with the following message:
"This bill attempts to clarify existing law relative to
employees' access to personnel records kept by their
employer. While I support the intent of this measure,
especially as it relates to non-English speakers and others
that may need help in understanding the contents of their
personnel records, this bill is too broad and exposes
employers to unfair and unnecessary liabilities. I
encourage the proponents of this bill to work with the
Labor Commissioner to adopt regulations that help ensure
that all employees can appropriately avail themselves of
AB 2674
Page 4
their rights under current law."
Analysis Prepared by : Kimberly Rodriguez / APPR. / (916)
319-2081