BILL ANALYSIS �
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Date of Hearing: May 4, 2011
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 1399 (Labor Committee) - As Proposed to be Amended: May 4,
2011
SUBJECT : Personnel records.
SUMMARY : Revises requirements of existing law concerning an
employee's right to inspect personnel records. Specifically,
this bill :
1 Allows employees to both inspect and receive copies of their
personnel records, and establishes a 30 calendar day period
for compliance with an employee request to do so.
2)Provides that the inspection and copying rights apply to both
current and former employees, and their representative.
3)Specifies 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.
4)Specifies that an employer may redact the name of any
non-supervisorial employee contained in the personnel records
prior to inspection or copying.
5)Requires an employer to maintain personnel records for at
least three years following an employee's termination of
employment.
6)For current employees, requires an employer to make the
employee's personnel records available for inspection or make
copies available, 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
copies at a location other than the place where he or she
reports to work, no loss of compensation to the employee shall
be permitted.
7)For former employees, requires an employer to make the
employee's personnel records available for inspection, or make
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copies available, at the location where the employer stores
the records. In addition, specifies that a former employee
shall have the option of receiving copies by mail, provided he
or she reimburses the employer for the actual postal expenses.
8)Allows for the recovery of a $750 penalty if the employer
fails to comply with these requirements.
9)Provides 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.
10)Specifies that a violation of these requirements is an
infraction, and impossibility of performance may be raised by
an employer as an affirmative defense.
11)Provides that the inspection rights cease during the pendency
of a lawsuit which relates to a personnel matter.
EXISTING LAW :
1 Provides that every employee has the right to inspect the
personnel records that the employer maintains relating to the
employee's performance or to any grievance concerning the
employee.
2)Requires an employer to make the contents of those personnel
records available to the employee at reasonable intervals and
at reasonable times.
3)Requires an employer to do one of the following:
a) Keep a copy of each employee's personnel records at the
place where the employee reports to work.
b) Make the employee's personnel records available at the
place where the employee reports to work within a
reasonable period of time following the employee's request.
c) 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.
4)Specifies that these requirements do not apply to the
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following:
a) Records relating to the investigation
of a possible criminal offense.
b) Letters of reference.
c) Ratings, reports or records that were obtained prior to
the employee's employment, prepared by identifiable
examination committee members, or obtained in connection
with a promotional examination.
d) Other specified public employees.
FISCAL EFFECT : Unknown
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.
ARGUMENTS IN SUPPORT :
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 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 (Labor Code Section 1198.5) by
conforming it generally to similar protections already in
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existing law dealing with payroll records (Labor Code Section
226).
According to CRLAF, 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." In CRLAF's experience, on-the-spot inspections alone
are often inadequate to accomplish this; in those cases, a right
to copy the records should be viewed as a natural extension of
the right to inspect.
In addition, CRLAF argues that workers with a limited
understanding of English have no real "access" to their
personnel records when access is limited to inspection only.
For these limited-English speaking Californians, meaningful
inspection of their English-language personnel records is a
practical impossibility (unless they are provided copies).
Finally, CRLAF states that the right of employees to bring a
representative with them to inspect records needs clarification.
Some employers refuse to allow employees to bring a
representative with them (who could aid in translation or in
understanding complex documents in the worker's file). This
bill resolves that problem by permitting access/copying by the
employee or his or her legally designated representative.
ARGUMENTS IN OPPOSITION :
This measure is opposed by the California Chamber of Commerce
(CalChamber) for a number of reasons.
First, they object that the bill imposes an automatic $750
statutory penalty for failure to comply with the various
requirements outlined in the bill, any one of which will trigger
the penalty. For example, there is no limit in the bill
regarding the number of times an employee, either former or
current, can request the personnel records. They contend that
a former employee could make repeated requests upon the employer
for his/her personnel records, even though such records have not
changed. This ability for an employee to make multiple requests
will create an ongoing burden to the employer as well as a
repeated risk of a statutory penalty.
Additionally, CalChamber states that there is no consideration
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regarding the burden on the employer in handling multiple
requests. For larger employers with thousands of employees, the
employer may receive 200 requests for personnel records at one
time, which the employer would then be forced to satisfy within
a strict 30-day time period, or face an automatic statutory
penalty of $750. For larger employers, personnel records are
generally not kept on-site where the employee works, but rather
a separate location, which makes complying with multiple
inspection requests difficult to satisfy within a strict time
frame.
Finally, CalChamber argues that the bill creates a potential
danger for employers with regard to former employees who may
have been terminated for harassment, workplace violence, or
another serious violation. Under this bill, a former employee
can request to inspect his/her personnel files at the employer's
location. CalChamber contends that if that former employee is
someone who the employer terminated for a serious violation
involving harassment and/or workplace violence, the employer
will be forced to either accept the statutory penalty or allow a
potentially dangerous individual onto their premises.
PRIOR LEGISLATION :
This bill is similar to AB 1707 (Labor Committee) from 2007.
That measure was vetoed by Governor Schwarzenegger.
REGISTERED SUPPORT / OPPOSITION :
Support
California Labor Federation, AFL-CIO
California Rural Legal Assistance Foundation (sponsor)
Opposition
Association of California Water Agencies
California Chamber of Commerce
California Employment Law Council
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091
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