BILL ANALYSIS Ó
AB 2674
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2674 (Swanson)
As Amended August 23, 2012
Majority vote
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|ASSEMBLY: |48-25|(May 7, 2012) |SENATE: |23-13|(August 28, |
| | | | | |2012) |
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Original Committee Reference: L. & E.
SUMMARY : Revises requirements of existing law concerning an
employee's right to inspect personnel records.
The Senate amendments :
1)Provide that an employer shall not be required to comply with
more than 50 requests to inspect and receive a copy of
personnel records filed by a representative or representatives
of employees in one calendar month.
2)Provide that these requirements do 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
rates for all overtime hours worked, and a regular rate of pay
of not less than 30% more than the state minimum wage rate.
3)Clarify a provision of law enacted last year that required
employers to maintain a copy of itemized wage statements to
provide that a "copy" includes a computer-generated statement,
as specified.
4)Add chaptering out amendments to avoid a conflict with two
other pending bills.
AS PASSED BY THE ASSEMBLY , this bill:
1 Allowed employees to both inspect and receive a copy of their
personnel records, and establishes a 30 calendar day period
for compliance with an employee request to do so. This time
frame may be extended to up to 35 calendar days by mutual
agreement.
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2)Provided that the inspection and copying rights apply to both
current and former employees, and their representative, as
specified.
3)Provided 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; or,
b) Written and submitted by the current or former employee
or his or her representative by completing an
employer-provided form.
4)Specified that the employer-provided form shall be made
available to the employee or his or her representative upon
verbal request to the employee's supervisor or other
employer-designated individual (if known).
5)Specified 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.
6)Specified that an employer may redact the name of any
non-supervisorial employee contained in the personnel records
prior to inspection or copying.
7)Required an employer to maintain personnel records for at
least three years following an employee's termination of
employment.
8)Required, for current employees, 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.
9)Required, for former employees, an employer to make the
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employee's personnel records available for inspection, and (if
requested) provide a copy, at the location where the employer
stores the records. 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.
10)Provided that if a former employee was terminated for a
violation of law, or an employment-related policy involving
harassment or workplace violence, the employer at his or her
option may respond to a request either by making the records
available at a neutral location or providing a copy. However,
nothing shall limit a former employee's right to receive a
copy of such records in lieu of inspection.
11)Provided that, with respect to former employees, an employer
is required to comply with only one request per former
employee per year.
12)Allowed for the recovery of a $750 penalty if the employer
fails to comply with these requirements.
13)Provided 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.
14)Specified that a violation of these requirements is an
infraction, and impossibility of performance may be raised by
an employer as an affirmative defense.
15)Provided that the inspection rights cease during the pendency
of a lawsuit which relates to a personnel matter.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : This bill is sponsored by the California Rural Legal
Assistance Foundation (CRLAF) and is designed to ensure that
current and former employees have a right to inspect and copy
their personnel files in order to defend their rights under
important state and federal statutes. CRLAF argues that, under
California law, it is a fundamental right that employees must
have access to their personnel records in order to properly
defend their rights under applicable employment laws. However,
existing Labor Code Section 1198.5 (which purports to protect
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this right) is extremely vague and unclear. Unscrupulous
employers and their attorneys use this fact to their advantage
to hide information that otherwise would be disclosed. This
type of uncertainty disadvantages employees, who have not seen
the records and therefore are not able to question the
employer's adverse employment actions against them. Therefore,
this bill seeks to clarify and improve current law with respect
to personnel records.
Last year a similar measure (AB 1399 (Labor and Employment
Committee)) was opposed by the California Chamber of Commerce.
However, the sponsor negotiated a series of amendments over the
last several months. As a result, the California Chamber of
Commerce now has no position on this bill.
In addition, at the request of employers, this bill makes a
clarification to legislation enacted last year AB 469 (Swanson),
Chapter 655, Statutes of 2011, requiring employers to maintain a
"copy" of worker paystubs. This amendment clarifies that a
"copy" can include a computer-generated record rather than an
actual duplicate copy, as specified.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091
FN:
0005441