BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 2674 (Swanson)
As Amended April 9, 2012
Hearing Date: June 26, 2012
Fiscal: Yes
Urgency: No
TW
SUBJECT
Employment Records: Right to Inspect
DESCRIPTION
This bill would require, an employer to maintain, as specified,
and provide, upon request, a current or former employee, or his
or her representative, with a copy of the employee's personnel
records within 30 days of the employee's request, as specified.
This bill would also impose a penalty of $750 on an employer who
fails to allow inspection or provide a copy of personnel records
to the employee, and would authorize the employee to bring an
action for injunctive relief and recover costs and reasonable
attorney's fees.
BACKGROUND
In 2000, the Legislature repealed various statutes that gave
employees access to their personnel records and replaced them
with a standard provision that applies to both public and
private sector employers. (SB 1327 (Escutia, Ch. 886, Stats.
2000).) Under existing law, an employee has a right to inspect
their personnel records and requires that employers make these
personnel records available to employees, as specified. (Lab.
Code Sec. 1198.5.)
This bill generally seeks to expand an employee's access to his
or her personnel records. In 2001, AB 1635 (Vargas, 2001) would
have authorized an employee to inspect and obtain a copy of his
or her personnel record. AB 1635 was vetoed by Governor Davis
due to concerns that it failed to protect the privacy of other
individuals who may be identified in personnel records and an
(more)
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employer's legitimate proprietary information. AB 1707
(Committee on Labor and Employment, 2007) also would have
authorized an employee to inspect and obtain a copy of his or
her personnel record, and provided other provisions similar to
this bill. AB 1707 was vetoed by Governor Schwarzenegger
because he believed the bill was too broad and exposed the
employer to unfair and unnecessary liabilities. This bill also
is substantially similar to AB 1399 (Committee on Labor and
Employment, 2011), which was held under submission and died in
the Assembly Appropriations Committee.
This bill, sponsored by the California Rural Legal Assistance
Foundation, would provide rights to inspect and receive a copy
of personnel records to a current or former employee or his or
her representative.
This bill was heard by the Senate Labor and Industrial Relations
Committee on June 13 and passed out on a vote of 5-1.
CHANGES TO EXISTING LAW
Existing law provides that every employee has the right to
inspect personnel records that the employer maintains relating
to the employee's performance or to any grievance concerning the
employee. (Lab. Code Sec. 1198.5(a).)
Existing law requires an employer to make the contents of an
employee's personnel records available to the employee at
reasonable intervals and at reasonable times. An employer is
not required to make personnel records available to the employee
when the employee is supposed to be working. (Lab. Code Sec.
1198.5(b).)
Existing law requires an employer to either keep a copy of each
employee's personnel records at the place where the employee
reports to work, make the personnel records available where the
employee reports to work within a reasonable period of time upon
the employee's request, or allow 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.
(Lab. Code Sec. 1198.5(c).)
Existing law provides that an employer does not have to provide
employee access to the following records:
records relating to the investigation of a possible criminal
offense;
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letters of reference;
ratings, reports, or records that were obtained prior to the
employee's employment, prepared by identifiable examination
committee members, or obtained in connection with a
promotional examination;
records of employees who are subject to the Public Safety
Officers Procedural Bill of Rights; or
employees of agencies subject to the Information Practices Act
of 1977. (Lab. Code Sec. 1198.5(d).)
Existing law provides that 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. (Lab. Code Sec.
1198.5(e).)
Existing law provides that, 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. (Lab. Code Sec.
1198.5(f).)
Existing law provides that every employer or other person acting
either individually or as an officer, agent, or employee of
another person is guilty of a misdemeanor and is punishable by a
fine of not less than $100 or by imprisonment for not less than
30 days, or by both, who violates or refuses or neglects to
comply with the above personnel records inspection requirements.
(Lab. Code Sec. 1199.)
This bill would provide personnel records inspection and copying
rights to both current and former employees, and their
representatives.
This bill would require an employer to make an employee's
personnel records available no later than 30 calendar days from
the date the employer receives a written request, unless the
employee, the employee's representative, and the employer agree
in writing to a date later than 30 calendars days to inspect the
records, but no later than 35 days.
This bill would require the employer, upon a written request
from the employee or his or her representative, to also provide
a copy of the personnel records, at a charge not to exceed the
actually costs of copying, no later than 30 calendar days from
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the date the employer receives the request unless a date is
agreed upon, but no later than 35 calendar days from receipt.
This bill would provide that the employer is not required to
make personnel records available when the employee is supposed
to be working, if the requester is the employee.
This bill would require a personnel records inspection or
copying request to be made by either a writing submitted by the
employee or his or her representative, or in a writing on an
employer-provided form submitted by the employee or his or her
representative. This bill would require the employer-provided
form to 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
to receive a verbal request for the form.
This bill would require an employer to maintain all employee
personnel records for at least three years after termination of
employment.
This bill would require an employer to 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.
This bill would provide that 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.
This bill would require an employer to 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. This bill would provide that a former employee may
receive a copy by mail if he or she reimburses the employer for
actual postal expenses. This bill would provide that, 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:
making the personnel records available to the former employee
for inspection at a location other than the workplace that is
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within a reasonable driving distance of the former employee's
residence; or
providing a copy of the personnel records by mail.
This bill would provide that 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.
This bill would provide that an employer may take reasonable
steps to verify the identity of a current or former employee or
his or her authorized representative, as defined.
This bill would authorize the employer to designate the person
to whom a request is made.
This bill would provide that, prior to making records available
for inspection or providing a copy of records, the employer may
redact the name of any nonsupervisory employee contained
therein.
This bill would repeal the ability of the Labor Commissioner to
adopt regulations that determine reasonable times and intervals
for the inspection of records maintained by an employer that is
not a public agency.
This bill would provide that an employer who 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 Act, or at times agreed to by mutual agreement as provided
in this Act, the current or former employee or the Labor
Commissioner may recover a $750 penalty from the employer.
This bill would authorize a current or former employee to bring
an action for injunctive relief to obtain compliance this Act
and provide that the employee may recover costs and reasonable
attorney's fees in such an action.
This bill would provide that a violation of this Act is an
infraction.
This bill would provide that 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 Act.
This bill would provide that, if an employee or former employee
files a lawsuit that relates to a personnel matter, as defined,
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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.
This bill would make other conforming changes to the above
inspection and copying provisions.
COMMENT
1. Stated need for the bill
The California Rural Legal Assistance Foundation (CRLA), the
sponsor of this bill, writes:
The bill updated Labor Code provisions which currently allow
an employee "to inspect the records that the employer
maintains relating to the employee's performance or to any
grievance concerning the employee." (Labor Code Section
1198.5.) The thrust of the bill is to make this existing
right to inspection more meaningful by allowing a current or
former employee or their authorized representative to request
and receive a copy of these personnel records, under specified
conditions.
AB 2674 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. The bill also benefits all other employees who
lack the ability to make an effective on-the-spot inspection
of their records.
2. Expanding access of employees to personnel records
This bill would provide that, in addition to the existing right
of inspection of personnel records, a current or former employee
has the right to receive a copy of his or her personnel records,
as specified. Proponents of this bill argue that it is
particularly important to provide limited-English speaking
employees with access to their personnel files through the
ability to designate a representative to receive copies of the
personnel records.
The California Labor Federation argues in support of this bill
as follows:
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Existing law gives workers the fundamental right to inspect
their personnel records in order to defend their rights under
the law. However, the vagueness of the law as written allows
unscrupulous employers to prevent workers from accessing their
files in a meaningful way. This disadvantages workers who
have not seen the records and therefore are not able to
question or defend against employer's employment actions
against them. . . . On the spot inspections alone are often
inadequate to fully understand and retain the information in
the file. The ability to make a copy ensures that a worker
has true access to all the information in their file.
The right to a copy of personnel files is particularly
important to workers with limited-English or low-literacy
ability. A copy enables workers to receive assistance to read
and fully comprehend the information in their files. Given
that a recent U.S. Census Bureau Survey found that 42.5
Ýpercent] of California residents do not speak English at
home, a large number of workers would also need translation of
documents in their file that they cannot get through
inspection only.
Some employers have refused to allow employees to bring a
representative with them who could aid in translation or in
the understanding of complex documents in the workers' file.
This bill resolves that problem by permitting access/copying
by the employee or his or her legally designated
representative.
This bill is substantially similar to AB 1399 (Committee on
Labor and Employment, 2011), which was opposed by the California
Chamber of Commerce (CalChamber) because it contended that the
bill:
had no limit regarding the number of times an employee, either
former or current, can request the personnel records and an
employee's multiple requests would create an ongoing burden to
the employer as well as a repeated risk of the statutory
penalty of $750;
provided no consideration regarding the burden on the employer
whose personnel records are maintained at a separate location
or the burden of handling multiple requests within a strict
time frame; and
created a potential danger for employers with regard to former
employees who may have been terminated for harassment,
workplace violence, or another serious violation.
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The author asserts that this bill incorporates terms negotiated
with CalChamber, who is neutral on this bill. Notably, this
bill would provide that a current or former employee could only
make one inspection or copying request per year. This bill
would also provide an employer with 30 days to respond to a
records request, which would give larger employers time to
locate personnel records maintained off-site. This bill would
also provide an employer with alternatives to on-site inspection
or pick-up of personnel records in the event the employee was
terminated for harassment or workplace violence.
CLRA, in support, argues that this bill does not expand the
scope of records subject to inspection or copying that are
otherwise exempt from disclosure, and notes that an employer
would be authorized to redact the name of any non-supervisorial
employee identified in the employee's personnel records.
Further, this bill would provide protections for an employer by
requiring an employee who designates a representative to inspect
or receive copies of the personnel records to designate the
representative in writing. CRLA further argues that this bill
would also allow the employer to "take all reasonable steps to
determine the identity of both the employee as well as any
designated representative."
As well as providing employers with reasonable compliance
protections, the Conference of California Bar Associations, also
in support, argues that "Ýb]ecause existing law does not provide
the employee, current or former, the right to copy their
personnel records, the employee is placed at a substantial
disadvantage when seeking legal counsel on their rights under
the laws. Employees, current and former, seeking documentation
in support of possible legal action against an employer . . .
are forced to file suit and proceed with discovery in order to
have their personnel documents evaluated by legal counsel. The
unwarranted effects of this practice have been the proliferation
of frivolous lawsuits against employers and the disenfranchising
of both the current and former employee to solicit an informed
pre-litigation opinion on the merits of their potential claims
against the employer."
Accordingly, this bill would provide better employee access to
personnel records while making appropriate accommodations for
employers.
3. Remedies for failure of employer to provide access to
personnel records
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This bill would provide a current or former employee with
enforcement measures when an employer fails or refuses to
provide the employee with personnel records as requested.
a. Imposition of penalty
This bill would provide that, if an employer fails to permit a
current or former employee, or his or her representative, with
access to personnel records, an employee or the Labor
Commissioner may recover a $750 penalty from the employer.
This penalty is consistent with the penalty imposed against an
employer who fails to provide a current or former employee
with inspection or copies of the employee's wage and deduction
records. (See Lab. Code Sec. 226(f).)
b. Injunctive relief
This bill would authorize a current or former employee to
bring an action for injunctive relief against an employer who
fails to comply with the inspection or copying request
provided in this bill. This provision is consistent with the
right of injunctive relief provided against an employer who
fails to provide an employee with wage and deduction records.
(See Lab. Code Sec. 226(h).)
c. Attorney's fees and costs
This bill would authorize an award of attorney's fees and
costs to a current or former employee in an action for
injunctive relief against an employer who fails to provide
inspection or copies of personnel records as provided in this
bill. This provision is consistent with award of attorney's
fees against an employer who fails to provide an employee with
wage and deduction records. (See Lab. Code Sec. 226(h).)
d. Affirmative defense for employer
This bill would provide that impossibility of performance
could be used as an affirmative defense by an employer who
fails to provide an employee's personnel records as requested.
This provision is consistent with the same affirmative
defense provided for an employer who fails to provide an
employee with wage and deduction records. (See Lab. Code Sec.
226(c).) The Labor Code does not provide a definition of
impossibility of performance and there is no case law on which
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to rely. However, the Civil Code provides that "everything is
deemed possible except that which is impossible in the nature
of things." (Civ. Code Sec. 1597.) Using this definition to
construe under what situations an employer may be unable to
provide an employee's personnel records, it is conceivable
that personnel records could be destroyed due to an act of
nature (i.e., as a result of extreme weather or geologic
conditions). Where the employer or an agent of the employer
could be shown to have destroyed or failed to maintain
personnel records, the employer should arguably not be able to
rely on this defense.
4. Opposition concerns
The California Employment Law Council (CELC), opposed unless
amended, agrees with the intent of this bill, but is "greatly
concerned . . . with the scope of the ability of representatives
to demand personnel records. Simply by mailing in
authorizations from large numbers of employees, a representative
could put an enormous burden on employers to produce records
within 30 days, and this could be done for tactical reasons or
to explore in a form of pre-litigation discovery. It is simply
inappropriate to use Labor Code access provisions in this
fashion, and while we understand that this is not the intent of
the author or sponsor, the bill as written presents a very
serious opportunity for abuse."
To address CELC's concerns, the author has agreed to amend the
bill in Committee to limit the number of requests that may be
submitted by an employee representative, as well as to provide
for any agreement regarding personnel records access included in
a collective bargaining agreement.
Author's amendment :
On page 5, after line 35 insert:
(p) An employer shall not be 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 the wages, hours of work, and
working conditions of the employees, a procedure for the
inspection and copying of personnel records, premium wage
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rates for all overtime hours worked, and a regular rate of
pay of not less than 30 percent more than the state minimum
wage rate.
5. Governor Schwarzenegger's vetoes of SB 172, AB 1635, and AB
1707
This bill is similar to the enrolled version of SB 172 (Escutia,
1999). In vetoing SB 172, Governor Davis stated:
This bill would expand existing laws related to employee
access to employee's personnel files and to the process by
which employees may amend information contained in the files.
The bill is flawed in several respects. First, it is vague
and ambiguous. Currently, there are no established
requirements regarding the content of personnel files, nor is
there even a legal requirement for employers to maintain such
files. So, it is unclear what exact files would come within
the purview of SB 172.
Second, assuming there is a personnel file with negative
material, this bill would allow removal of that material after
two years and places some burdens on the employer to purge
files after two years. This could make it difficult to
establish the existence of adequate cause for a disciplinary
action should it become necessary at a later date.
Third, allowing an employee to inspect his or her file at any
time during business hours, with no loss of compensation,
would be quite disruptive to the workplace environment.
Employers should be allowed to establish rules of access.
This bill is similar to the enrolled version of AB 1635 (Vargas,
2001). In vetoing AB 1635, Governor Davis stated:
Under current law, employees have the right to inspect their
own personnel records. This bill would permit employees to
obtain a copy of those records, and would authorize employers
to charge either a maximum copying fee of ten cents per page
or an amount specified in an applicable collective bargaining
agreement.
While it would modify existing law governing personnel
records, this bill contains no provisions to protect the
privacy of other individuals who may be identified in the
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personnel records. Without measures that ensure the privacy
of those individuals and the confidentiality of a company's
legitimate proprietary information, the potential for harm of
this measure outweighs the possible benefits.
This bill is similar to the enrolled version of AB 1707
(Committee on Labor and Employment, 2007). In vetoing AB 1707,
Governor Schwarzenegger stated:
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 their rights under current law.
Support : American Federation of State, County and Municipal
Employees, AFL-CIO; California Labor Federation; Conference of
California Bar Associations
Opposition : California Employment Law Council
HISTORY
Source : California Rural Legal Assistance Foundation
Related Pending Legislation : None Known
Prior Legislation :
AB 1399 (Committee on Labor and Employment, 2011) See Background
and Comment 2.
AB 1707 (Committee on Labor and Employment, 2007) See Background
and Comment 4.
AB 1635 (Vargas, 2001) See Background and Comment 4.
SB 1327 (Escutia, Ch. 886, Stats. 2000) See Background.
SB 172 (Escutia, 1999) See Comment 4.
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Prior Vote :
Assembly Floor (Ayes 48, Noes 25)
Assembly Committee on Appropriations (Ayes 12, Noes 5)
Assembly Committee on Labor and Employment (Ayes 5, Noes 1)
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