Employees' Right to Employment Records (Employees and Employers)

There are three important sections of the California Labor Code that require employers to keep and provide copies of an employee’s work records. These laws encourage record maintenance and allow employees to know the information gathered about them during employment. It is important for employees to make requests in writing, preferably with some proof of delivery, such as certified mail or e-mail. It important for employers to take the request seriously and act on it promptly, as we will see below.

California Labor Code Section 226 requires an employer to provide a copy of an employee’s payroll records within 21 days of the request. If an employer fails to provide the records, an employee may be entitled to a $750.00 penalty plus attorney’s fees and costs for having to hire an employment attorney to secure access to their records. Employers may charge a reasonable copying fee for producing the records. Employers may also give an employee access to copy the records on their own, and/or provide a time and place to come pick up records.

Example 1 - Employee Entitled to Penalty for Failure to Produce Pay Records: Employee works for a small grocery and liquor market in Castro Valley, California. Store is owned by employee’s uncle’s friend. The employment arrangement has been informal. Employee works 10-12 hours and has never received overtime pay. Employee decides to request payment for overtime for the past two and half years of work. Store owner terminates employee for seeking retroactive payment. Employee hires a qualified employment attorney in Oakland to make a records request. Store owner fails to provide the records within 21 days. Employee is entitled to his overtime pay, waiting time penalties, inaccurate wage statements, interest, plus a $750.00 penalty for failure to produce the records, along with reasonable attorney’s fees and costs.

California Labor Code Section 432 requires an employer to produce all documents an employee signed. Although there is no specified time requirement nor penalty specified, it is reasonable to expect an employer to produce signed documents within 30 days of receiving the request. This section is particularly useful if an employee works on commission and wants a copy of the commission contract, or if an attorney or their representative wants to see if an arbitration agreement governs their employment agreement.

California Labor Code Section 1198.5 requires an employer to produce an employee’s personnel file within 30 days of the request. Failure to produce the records is punishable by a $750.00 fine plus attorney’s fees and costs. Although no case specifically defines “personnel file”, it is reasonable to assume that employers should produce all on-boarding documents, such as an I9 and offer letter, as well as any W2s, 1099s, or other tax records. Employers should also produce any documents about substantial employment actions, such as discipline records, transfers, signed benefits designations, among other writings.

Example 2 – Employee Not Entitled to Penalty for Timely Production of Personnel File: Employee works as a high school teacher in Fremont, California. She has applied for various promotions she is qualified for, but repeatedly gets passed over. Employee is considering bringing a race discrimination case against the district but first wants all records relating to her applications for advancements over the past ten years. Employee calls a local employment attorney in Oakland, California to assess her race discrimination claim. Employment attorney makes a written request for records. School district provides a date and time for teacher to come to campus and copy the documents she wants for $0.10 per page. Employer has likely satisfied its duty under Section 1998.5.

Government employees may make these same records requests. Some documents may also be obtained through public disclosure laws. The Freedom of Information Act (FOIA) allows an employee or citizen to request records from the federal government. The Public Records Act (PRA) allows an employee or citizen to request records from a California government entity, such as the City of Oakland or the City of San Francisco.

Both a FOIA request and a PRA request will get reviewed by the entity in charge of the records. The reviewer may seek input from a legal representative of the affected entity in order to see if some type of privilege, such as privacy, should be asserted. It is common to receive “redacted” records from a government entity that do not show all information, such as a government employee’s name and e-mail address who communicated regarding the subject of the request.

If you believe your employer or a government entity has records that you need in order to ascertain your employment law rights, call us now for a free phone conversation about the best way to proceed. If you are an employer who has received a records request, consider calling a local employment attorney to assist in sensitive human resource functions and learn more about your record retention obligations.