Tips for Handling Personnel File and Records Requests

If you have ever received a pre-litigation records request, then you may already know that such a request tends to be a harbinger of a lawsuit on the horizon. Plaintiffs' lawyers regularly use California Labor Code provisions to obtain pay and personnel records before a lawsuit has been filed. 

While employees (or their representative) are undoubtedly entitled to receive these records, this "try before you buy" approach allows plaintiffs' attorneys to assess the strength of their client's claims, and less obvious, allows plaintiffs' attorneys to scour employers' records for additional, companywide violations. For employers who include more than they should in their employees' personnel files, this could prove to be a costly mistake that could have been easily avoided.

Too Much Information

California Labor Code section 1198.5, which governs the production of an employee's personnel file before litigation, does not identify which documents should be in a personnel file. Consequently, well-meaning employers often include more items than necessary. These items include, but are not limited to, investigation reports, medical documents, and workers' compensation documents.

However, the most common and most problematic item included in a personnel file is a copy of the employer's entire employee handbook. The issue here is that, while the employee may have signed an acknowledgement of receipt/review of the handbook (which can be included in his or her personnel file), the handbook itself may contain incorrect or outdated recitations of the law. The effect? Savvy plaintiffs' attorneys take these incorrect or outdated policies and use them as the basis for a class action or Private Attorneys General Act (PAGA) representative action, predicated on an on-paper, companywide misapplication of the law. (See Brinker v. Superior Court (2012) 53 Cal. 4th 1004.)

And just like that, the employer faces a class-action lawsuit when the employee's file may not have indicated labor code violations had the file contained only the necessary documents.

Guidance

So what are those necessary documents? As mentioned, California Labor Code section 1198.5 is silent on this question. However, the Department of Labor Standards Enforcement (DLSE) has provided some guidance. According to the DLSE, categories of records that are generally considered to be "personnel records" are those that are used or have been used to determine the employee's qualifications for promotion, additional compensation, or disciplinary action, including termination. The following are some examples of personnel records:

• Application for employment.
• Payroll authorization form.
• Notices of commendation, warning, discipline and termination.
• Notices of layoff, leave of absence and vacation.
• Notices of wage attachment or garnishment.
• Education and training notices and records.
• Performance appraisals and reviews.
• Attendance records.

This list is not exhaustive, and employers are encouraged to seek a comprehensive review of the employee's file by an employment attorney before providing it to the employee or his or her representative by the statutory or agreed upon deadline.

The key to avoiding lawsuits is to engage in preventative best practices early, which in this case should be when the employee is hired and the personnel file is created.

Arcelia N. Magaña is an attorney with Jackson Lewis in San Diego. © 2019 Jackson Lewis. All rights reserved. Reposted with permission.