BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2674|
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THIRD READING
Bill No: AB 2674
Author: Swanson (D)
Amended: 7/3/12 in Senate
Vote: 21
SENATE LABOR & INDUST. RELATIONS COMM. : 5-1, 6/13/12
AYES: Lieu, DeSaulnier, Leno, Padilla, Yee
NOES: Wyland
NO VOTE RECORDED: Runner
SENATE JUDICIARY COMMITTEE : 3-1, 6/26/12
AYES: Evans, Corbett, Leno
NOES: Harman
NO VOTE RECORDED: Blakeslee
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 48-25, 5/7/12 - See last page for vote
SUBJECT : Employment records: right to inspect
SOURCE : California Rural Legal Assistance Foundation
DIGEST : This bill requires an employer to maintain
personnel records for a specified period of time and to
provide a current or former employee, or his/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.
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This bill provides 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. This
bill provides 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, this bill permits a current or former employee
or the Labor Commissioner to recover a penalty of $750 from
the employer, and further permits a current or former
employee to obtain injunctive relief and attorney's fees.
This bill provides that a violation of the existing law
requiring that personnel records be made available for
inspection constitutes an infraction.
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 (LAB) Section 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.
(LAB Section 1198.5)
Existing law requires that employers do one of the
following:
1. Keep a copy of each employee's personnel records at the
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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 requires an employer to maintain personnel
records for a specified period of time and to provide a
current or former employee, or his/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. This bill
provides 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. This bill provides 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, this
bill permits a current or former employee or the Labor
Commissioner to recover a penalty of $750 from the
employer, and further permits a current or former employee
to obtain injunctive relief and attorney's fees.
This bill provides that a violation of the current law
requiring that personnel records be made available for
inspection constitutes an infraction.
Comments
Need for this bill . Under existing law, employers are
required to maintain comprehensive payroll records and make
them available for inspection to employees upon request.
Employers are required 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
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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. (LAB Section
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's office argues that existing LAB
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 ensures that current and former employees (and
his/her representative) have a right to inspect and copy
their personnel files. The changes proposed with this bill
conforms the access provisions for personnel records to
similar protections already in existing law dealing with
payroll records.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/7/12)
California Rural Legal Assistance Foundation (source)
AFSCME, AFL-CIO
California Labor Federation
Conference of California Bar Associations
OPPOSITION : (Verified 8/7/12)
Department of Finance
ARGUMENTS IN SUPPORT : According to proponents, this bill
updates the existing 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
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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 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 resolves this problem by permitting
access/copying by the employee or his/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 broadly conforms the personnel access provisions of
LAB Section 1198.5 with the itemized pay stub access
provisions of LAB Section 226, which added a right to copy
pay stub records in 1988.
ARGUMENTS IN OPPOSITION : The Department of Finance
states, "ÝThis bill] would result in additional costs not
included in the 2012-13 Budget Act. Additionally, these
costs would be supported by the Labor Enforcement
Compliance Fund, which under current law sunsets on July 1,
2013. Should legislation be enacted to extend the life of
the Labor Enforcement Compliance Fund, additional costs
would likely result in an increased employer assessment to
fund the activities supported by the fund."
ASSEMBLY FLOOR : 48-25, 5/7/12
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Buchanan, Butler, Charles
Calderon, Campos, Carter, Cedillo, Chesbro, Davis,
Dickinson, Eng, Feuer, Fong, Fuentes, Galgiani, Gatto,
Gordon, Gorell, Hayashi, Roger Hernández, Hill, Huber,
Hueso, Huffman, Bonnie Lowenthal, Ma, Mendoza, Mitchell,
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Monning, Pan, Perea, V. Manuel Pérez, Skinner, Solorio,
Swanson, Torres, Wieckowski, Williams, Yamada, John A.
Pérez
NOES: Achadjian, Bill Berryhill, Conway, Donnelly, Beth
Gaines, Garrick, Grove, Hagman, Halderman, Harkey,
Jeffries, Jones, Knight, Logue, Mansoor, Miller, Morrell,
Nestande, Nielsen, Norby, Olsen, Silva, Smyth, Valadao,
Wagner
NO VOTE RECORDED: Brownley, Cook, Fletcher, Furutani,
Hall, Lara, Portantino
PQ:k 8/7/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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