BILL ANALYSIS Ó
Senate Committee on Labor and Industrial Relations
Ted W. Lieu, Chair
Date of Hearing: June 13, 2012 20011-2012 Regular
Session
Consultant: Alma Perez Fiscal:Yes
Urgency: No
Bill No: AB 2674
Author: Swanson
As Introduced/Amended: April 9, 2012
SUBJECT
Employment records: right to inspect
KEY ISSUES
Should current and former employees (and his/her representative)
have a right to inspect and receive a copy of their personnel
records from their current/former employer?
Should the provisions governing access to an employee's
personnel records conform to those already in existing law
regarding payroll records?
PURPOSE
To grant current and former employees greater access to their
personnel records.
ANALYSIS
Existing law requires every employer, semimonthly or at the time
of each payment of wages, to provide each employee with an
accurate itemized statement, in writing, that contains specific
information, including gross wages earned, total hours worked,
all deductions, and the name and address of the legal entity
that is the employer, among other things. Existing law requires
that employers keep for at least three years, and make available
for inspection by current and former employees, a copy of these
statements or records. Failure to comply with this requirement
is an infraction subject to a civil penalty. (Labor Code §226)
Under existing law, every employee has the right to inspect
personnel records maintained by the employer relating to the
employee's performance, any grievance concerning the employee or
his/her payroll records. However, these requirements do not
apply to records relating to the investigation of a possible
criminal offense, letters of reference, or ratings, reports, or
records that were obtained prior to the employee's employment,
among others. (Labor Code § 1198.5)
Existing law requires that employers do one of the following:
1)Keep a copy of each employee's personnel records at the place
where he/she reports to work.
2)Make the employee's personnel records available at the place
where he/she reports to work within a reasonable period of
time following an employee's request.
3)Permit the employee to inspect the personnel records at the
location where the employer stores the personnel records, with
no loss of compensation to the employee.
This Bill would revise requirements of existing law regarding an
employee's right to inspect his or her personnel records.
Specifically, this bill:
1) Allows an employee to both inspect and receive a copy of
their personnel records, and establishes a 30 calendar day
period for employer compliance with an employee request.
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.
Hearing Date: June 13, 2012 AB 2674
Consultant: Alma Perez Page 2
Senate Committee on Labor and Industrial Relations
3) Provides that a request to inspect or 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, as specified.
4) Requires that employers maintain a copy of each
employee's personnel records for at least three years
following an employee's termination of employment.
5) 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.
6) 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 or at a location mutually
agreed to. 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.
7) 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 may comply
with the request by either making the records available at
a neutral location or providing a copy. However, nothing
limits a former employee's right to receive a copy of his
or her records.
Hearing Date: June 13, 2012 AB 2674
Consultant: Alma Perez Page 3
Senate Committee on Labor and Industrial Relations
8) Provides that, with respect to former employees, an
employer is required to comply with only one request per
former employee per year.
9) 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.
10) Specifies that an employer may redact the name of any
non-supervisorial employee contained in the personnel
records prior to inspection or copying.
11) Allows for the recovery of a $750 penalty if the
employer fails to comply with the inspection requirements
in the bill.
12) 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.
13) Specifies that a violation of these requirements is an
infraction, and impossibility of performance may be raised
by an employer as an affirmative defense.
14) Provides that the inspection rights cease during the
pendency of a lawsuit which relates to a personnel matter.
COMMENTS
1. Need for this bill?
Under current law, employers are required to maintain
comprehensive payroll records and make them available for
inspection to employees upon request. Employers are required
Hearing Date: June 13, 2012 AB 2674
Consultant: Alma Perez Page 4
Senate Committee on Labor and Industrial Relations
to comply with a written or oral request from a current or
former employee to inspect or copy payroll records within 21
days. Failure to comply with this requirement entitles the
current or former employee or the Labor Commissioner to
recover a penalty of $750. An employee can also bring an
action in court to require compliance with the request and is
entitled to recover costs and reasonable attorneys' fees.
(Labor Code §226)
With regard to an employee's right to inspect his/her
personnel records, however, the law is not as explicit about
access. The author argues that existing Labor Code Section
1198.5 (which purports to protect this right) is extremely
vague and unclear. This uncertainty is particularly
challenging for workers with limited understanding of English
who have no real "access" to their personnel records when
access is limited to inspection because they may need a copy
to take to a translator or may need to bring a representative
with them for assistance. This bill would ensure that current
and former employees (and his or her representative) have a
right to inspect and copy their personnel files. The changes
proposed with this bill would conform the access provisions
for personnel records to similar protections already in
existing law dealing with payroll records.
2. Proponent Arguments :
According to proponents, this bill would update the current
law by making the existing right of employees to inspect their
personnel records more meaningful by allowing a current or
former employee (or their authorized representative) to make
the request and receive a copy of their job-related personnel
records. Proponents argue that on-the-spot inspections alone
are often inadequate to fully understand and retain the
information in the file and the ability to make a copy ensures
that a worker has true access to all the information.
Proponents argue that the right to a copy of personnel files
is particularly important to California's large population of
limited-English speaking employees for whom inspection of
their English-language personnel records is an impossibility.
According to proponents, some employers have refused to allow
Hearing Date: June 13, 2012 AB 2674
Consultant: Alma Perez Page 5
Senate Committee on Labor and Industrial Relations
employees to bring a representative with them to aid in
translation or in the understanding of complex documents in
the workers' file. They argue that this bill would resolve
this problem by permitting access/copying by the employee or
his or her legally designated representative. Proponents
argue that 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. Lastly, proponents argue that if enacted, this bill
would broadly conform the personnel access provisions of
section 1198.5 with the itemized pay stub access provisions of
section 226, which added a right to copy pay stub records in
1988.
3. Opponent Arguments :
None received.
4. Double Referral :
Should the bill be passed by this Committee, it will next be
referred to the Senate Judiciary Committee for a hearing.
5. Prior Legislation :
AB 1399 (Comm. on Labor and Employment) of 2011: Held in Asm.
Appropriations
This bill is very similar to AB 1399 (Labor and Employment
Committee) from last year. Last year, AB 1399 received
opposition from the California Chamber of Commerce. This year,
the author and the sponsor have negotiated a series of
amendments over the last several months that have moved the
California Chamber of Commerce to having "no position" on this
bill.
AB 1707 (Comm. on Labor and Employment) of 2011: Vetoed by the
Governor
This bill is also similar to AB 1707 (Labor and Employment
Committee) from 2007. That measure was vetoed by Governor
Schwarzenegger.
Hearing Date: June 13, 2012 AB 2674
Consultant: Alma Perez Page 6
Senate Committee on Labor and Industrial Relations
SUPPORT
California Rural Legal Assistance Foundation (Sponsor)
American Federation of State, County and Municipal Employees,
AFL-CIO
California Labor Federation
Conference of California Bar Associations
OPPOSITION
None received
Hearing Date: June 13, 2012 AB 2674
Consultant: Alma Perez Page 7
Senate Committee on Labor and Industrial Relations