BILL ANALYSIS �
AB 1399
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Date of Hearing: May 18, 2011
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 1399 (Committee on Labor and Employment) - As Amended: May
9, 2011
Policy Committee: Labor and
Employment Vote: 5-1
Urgency: No State Mandated Local Program:
Yes Reimbursable: Yes
SUMMARY
This bill amends provisions of existing law related to an
employee's right to inspect or copy personnel records.
Specifically, this bill:
1)Establishes the right of every employee to both inspect and
receive copies of his or her personnel record and requires an
employer to comply within 30 days of this request.
2)Requires a current employer to maintain a copy of a current
employee's personnel record for a minimum of three years after
the termination of the employee and make the record available
for inspection, or provide copies, at the request of the
employee. Establishes similar provisions for former
employers; however, former employees are required to reimburse
employers for copies.
3)Authorizes a current or former employee, or the Labor
Commission (LC), to recover a penalty of $750 from an employer
who fails to permit current or former employees from
inspecting or copying personnel records pursuant to this
measure. Also, authorizes employees to bring an action for
injunctive relief to compliance with these provisions,
including attorney's fees.
4)Establishes an infraction for violations of provisions in this
measure, as specified. If an employee (current or former)
files a lawsuit related to a personnel matter, this measure
further requires employee access to personnel records to
cease, as specified.
AB 1399
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FISCAL EFFECT
Unknown significant costs, likely between $150,000 and $200,000
to the Division of Labor Standards Enforcement related to
enforcement of enhanced requirements and conducting a rulemaking
process.
COMMENTS
1)Existing law specifies that every employee has the right to
inspect (but not copy) the personnel records that the employer
maintains relating to the employee's performance and any
grievances concerning the employee. It also requires the
employer make the contents of those personnel records
available to the employee at reasonable intervals and at
reasonable times. Employers can either keep the personnel
records at the place where the employee reports to work, or
can keep them elsewhere as long as they can be delivered to
the employee's place of work within a reasonable period of
time.
Statute also authorizes the LC to adopt regulations that
determine the reasonable times and reasonable intervals for
private employers at which they must provide these personnel
records.
2)Rationale . According to the California Rural Legal Assistance
Foundation, sponsor of this bill, "The unmistakable purpose of
�existing law] 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 our 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.
This bill amends provisions of existing law related to an
employee's right to inspect personnel records.
3)Opposition . Opponents of this measure (CalChamber and other
business organizations) argue the bill is unnecessary and
burdensome to employers. They cite no limitation on the
number of times an employee can request access to his or her
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personnel file. For example, a former employee (whose file
may not be easily accessible) is able to make multiple
requests to inspect or copy his or her personnel file even
though the records have not changed.
Opponents also contend large employers would incur a
significant burden because they may receive a large number of
requests to inspect or copy personnel files at one time. As
such, it may be difficult to respond to these requests within
30 days, which means they will receive a penalty of $750 under
this measure.
4)Previous legislation . AB 1707 (Labor and Employment
Committee, similar to this measure, was vetoed by Governor
Schwarzenegger in October 2007 with the following message:
"This bill attempts to clarify existing law relative to
employees' access to personnel records kept by their employer.
While I support the intent of this measure, especially as it
relates to non-English speakers and others that may need help
in understanding the contents of their personnel records, this
bill is too broad and exposes employers to unfair and
unnecessary liabilities. I encourage the proponents of this
bill to work with the Labor Commissioner to adopt regulations
that help ensure that all employees can appropriately avail
themselves of their rights under current law."
Analysis Prepared by : Kimberly Rodriguez / APPR. / (916)
319-2081