BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 2674| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 2674 Author: Swanson (D) Amended: 8/23/12 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. CONTINUED AB 2674 Page 2 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. Senate Floor Amendments of 8/23/12 add language to triple-joint the overlapping provisions of AB 2674 (Swanson), AB 1744 (B. Lowenthal) and SB 1255 (Wright) to avoid the problem of "chaptering-out." Senate Floor Amendments of 8/20/12 (1) specify that for purposes of the payroll records provisions, a "copy" of the payroll records includes a duplicate of the itemized statement provided to an employee or a computer-generated record that accurately shows all of the information required by law, and (2) give the employer some flexibility by allowing him/her to make copies or re-generate a record in order to fulfill existing requirements in law. 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) CONTINUED AB 2674 Page 3 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 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. CONTINUED AB 2674 Page 4 This bill provides that a violation of the current law requiring that personnel records be made available for inspection constitutes an infraction. This bill provides that the term "copy" includes a duplicate of the itemized statement provided to an employee or a computer-generated record that accurately shows all of the information that existing law requires to be included in the itemized statement. 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 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 CONTINUED AB 2674 Page 5 Local: Yes SUPPORT : (Verified 8/23/12) California Rural Legal Assistance Foundation (source) AFSCME, AFL-CIO California Labor Federation Conference of California Bar Associations 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 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. ASSEMBLY FLOOR : 48-25, 5/7/12 CONTINUED AB 2674 Page 6 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, 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 8/23/12 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED