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:  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. 
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                                                               AB 2674
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          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)


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          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.  

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          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   

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                                                               AB 2674
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          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

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                                                               AB 2674
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          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

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