BILL NUMBER: AB 1399 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 26, 2011
INTRODUCED BY Committee on Labor and Employment (Swanson (Chair),
Alejo, Allen, Furutani, and Yamada)
FEBRUARY 28, 2011
An act to amend Section 1198.5 of the Labor Code, relating to
employment records.
LEGISLATIVE COUNSEL'S DIGEST
AB 1399, as amended, Committee on Labor and Employment. Employment
records: right to inspect.
Under existing law, an employee has the right to inspect the
personnel records that his or her employer maintains relating to the
employee's performance or to any grievance concerning the employee.
This bill would require an employer to maintain personnel records
for a specified period of time and to provide a current or former
employee, or his or her representative, an opportunity to inspect and
make copies of those records within a specified period of time. In
addition, in the event an employer violates these provisions, the
bill would permit a current or former employee or the Labor
Commissioner to recover a penalty of $750 from the employer, and
would further permit a current or former employee to obtain
injunctive relief and attorney's fees.
Under existing law, an employer shall be guilty of a misdemeanor
and is punishable by a fine, as specified, or imprisonment, as
specified, if he or she violates or refuses or neglects to comply
with certain provisions, including the above provisions.
This bill would notwithstand the above-described misdemeanor and
fine and imprisonment provisions and would, instead, provide that a
violation of the above provisions regarding personnel records
constitutes an infraction. Although this bill would change a
violation of the above-described provisions regarding personnel
records from a misdemeanor to an infraction, by expanding the scope
of what would constitute an infraction, this bill would impose a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1198.5 of the Labor Code is amended to read:
1198.5. (a) Every current and former employee, and his or her
representative, has the right to inspect and receive copies of the
personnel records that the employer maintains relating to the
employee's performance or to any grievance concerning the employee.
(b) The employer shall make the contents of those personnel
records available for insp ection to the
current or former employee, or his or her representative, at
reasonable intervals and at reasonable times, but not later than 21
calendar days from the date of a written or oral request ,
as specified, for these records. Upon a written
request from a current or former employee, or his or her
representative, the employer shall also provide copies of the
personnel records, at a charge not to exceed the actual cost of
reproduction , not later than 21 calendar days from the date of
the request . Except as provided in paragraph (4)
(2) of subdivision (c), the employer is not
required to make those personnel records or copies thereof
available at a time when the employee is actually required to render
service to the employer, if the requester is the employee.
(c) The employer shall do the following:
(1) Keep With regard to all employees,
maintain a copy of each current employee's
personnel records at the place where the employee reports to
work.
(2) Maintain a copy
of each employee's personnel records for a period of not less than
four years after termination of employment. for a
period of not less than three years after termination of employment.
(3) Make
(2) With regard to current employees,
make a current employee's personnel records available for
inspection, or provide copies thereof, as requested by the employee
or his or her representative, at the place where the employee
reports to work within a reasonable period of time following
a request by an employee, or his or her representative, but not
later than 21 calendar days from the date of a request.
(4) Permit a current employee, or his or her representative, to
inspect the personnel records at the location where the employer
stores the personnel records, with no loss of compensation to the
employee.
(5) Make a former
employee's personnel records available for inspection at the location
where the employer stores the records or, at the request of the
former employee, or his or her representative, provide a copy of the
personnel records to the former employee, or his or her
representative, not later than 21 calendar days from the date of the
request. , or at another location agreeable to the
employer and the requester. If the employee is required to inspect or
receive copies at a location other than the place where
he or she reports to work, no loss of compensation to the employee is
permitted.
(3) With regard to former employees, make a former employee's
personnel records available for inspection, or provide copies
thereof, as requested by the employee or his or her representative,
at the location where the employer stores the records. A former
employee may receive copies by mail if he or she reimburses the
employer for actual postal expenses.
(d) The employer may take reasonable steps to verify the identity
of a current or former employee or his or her authorized
representative. For purposes of this section, "representative" means
a person authorized in writing by the employee to inspect, or receive
a copy of, his or her personnel records.
(e) The employer may designate the person to whom a request is
made.
(f) Prior to making records specified in subdivision (a) available
for inspection or providing copies of those records, the employer
may redact the name of any nonsupervisory employee contained therein.
(d)
(g) The requirements of this section do not apply to:
(1) Records relating to the investigation of a possible criminal
offense.
(2) Letters of reference.
(3) Ratings, reports, or records that were:
(A) Obtained prior to the employee's employment.
(B) Prepared by identifiable examination committee members.
(C) Obtained in connection with a promotional examination.
(4) Employees who are subject to the Public Safety Officers
Procedural Bill of Rights (Chapter 9.7 (commencing with Section 3300)
of Division 4 of Title 1 of the Government Code).
(5) Employees of agencies subject to the Information Practices Act
of 1977 (Title 1.8 (commencing with Section 1798) of Part 4 of
Division 3 of the Civil Code).
(e) 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.
(f)
(h) 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.
(g)
(i) In enacting this section, it is the intent of the
Legislature to establish minimum standards for the inspection
and the receipt of copies of personnel records by employees.
Nothing in this section shall be construed to prevent the
establishment of additional rules for the inspection and the
receipt of copies of personnel records that are established as
the result of agreements between an employer and a recognized
employee organization.
(h)
(j) If an employer 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 section, the current or
former employee or the Labor Commissioner may recover a penalty of
seven hundred fifty dollars ($750) from the employer.
(i)
(k) A current or former employee may also bring an
action for injunctive relief to obtain compliance with this section,
and may recover costs and reasonable attorney's fees in such an
action.
(l) Notwithstanding Section 1199, a violation of this section is
an infraction. 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
section.
SEC. 2. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.