Fundamentals of Employee Files for Employers in California

Current and former employees have the right to inspect their staff files upon request within a time frame set by statute. When an employment-related claim arises, these individuals typically request a copy of their personnel file. However, if the employer has not properly maintained these files, it is impossible to recreate them retroactively.

Here’s an overview of employee files for California employers.

Requirement to Maintain Employee Files

To comply with California law, employers must retain former employees’ files for a minimum of three years following the individual’s separation from the company.

Documents Employees Are Entitled to Review

According to the California Labor Code, employers are required to provide employees with copies of any documents that they signed as part of obtaining or maintaining employment. Typical contents of staff files include:

• Recruiting and screening documents (such as applications, resumes, and educational transcripts).
• Job descriptions.
• Handbook and policy acknowledgments.
• Employment agreements (if applicable).

Additional records used to determine qualifications for promotion, extra compensation, or disciplinary action should also be included. These could encompass:

• Notices of commendation, warnings, or discipline.
• Notices of layoff, leaves of absence, and vacation.
• Education and training notices and records.
• Performance reviews.
• Attendance records.
• Payroll authorization forms.
• Termination notices and documentation.

Medical information should never be stored within the employee file. Under California regulations, such information must be kept separately to protect the employee’s confidentiality. Medical details may include records associated with workers’ compensation claims or documentation provided during the interactive process for medical leave or accommodation requests.

Documents an Employee Cannot Review

Under California law, employees do not have the right to review certain records, including:

• Records related to the investigation of a possible criminal offense.
• Letters of reference.
• Ratings, reports, or records obtained from the employee’s previous employer, prepared by identifiable examination committee members, or obtained in connection with a promotional examination.

Exceptions

If an employee or former employee files a lawsuit that relates to a personnel matter against his or her employer or former employer, the right of the employee, former employee, or his or her representative to inspect or copy staff records under this section ceases during the pendency of the lawsuit in the court with original jurisdiction. A lawsuit “relates to a personnel matter” if a current or former employee’s employee records are relevant to the lawsuit.

Failure to Comply with Request to Inspect Employee Records

Once an employer receives a written request from a current or former employee or a representative, the employer must provide a copy of the employee records within 30 calendar days from the date the employer received the request, unless the current or former employee (or his or her representative) and the employer agree in writing to a date beyond 30 calendar days to produce a copy of the records, as long as the agreed-upon date does not exceed 35 calendar days from the employer’s receipt of the written request. Failure to comply within the time prescribed may allow the employee or the Labor Commissioner to recover a penalty of $750 from the employer. A current or former employee may also bring an action for injunctive relief to obtain compliance.

While maintaining organized employee files will not protect an employer from all legal claims, ensuring the appropriate documents are retained for the correct amount of time per California law will facilitate litigation processes for both the employer and its attorney.

Requests for employee files are often a precursor to a demand letter or lawsuit. Therefore, reviewing a proposed production with an attorney may facilitate early evaluation and strategic considerations.

Gaurav Bobby Kalra and Raja Hafed are attorneys at Jackson Lewis in Sacramento, Calif.