Release of Employment Records Without a Subpoena
Employers are required to permit current and former employees to inspect or copy payroll records pertaining to a current or former employee according to Labor Code section 226(b). Effective January 1, 2003, an employer who receives a written or oral request from a current or former employee to inspect or copy his or her payroll records shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request. A failure by an employer to permit a current or former employee to inspect or copy his or her payroll records within the aforementioned 21 calendar day period entitles the current or former employee to recover a penalty from the employer in a civil action before a court of competent jurisdiction. (Labor Code Section 226, subdivisions (c) and (f)).
California law requires that employers allow employees and former employees access to their personnel files and records that relate to the employee’s performance or to any grievance concerning the employee according to Labor Code Section 1198.5. Inspections must be allowed at reasonable times and intervals.
To facilitate the inspection, employers must do one of the following:
- Keep a copy of each employee’s personnel records at the place where the employee reports to work,
- Make the personnel records available at the place where the employee reports to work within a reasonable amount of time following the employee’s request, or
- Permit the employee to inspect the records at the location where they are stored with no loss of compensation to the employee.
The right to inspect personnel files and records does not apply to records relating to the investigation of a possible criminal offense, letters of reference, or ratings, reports, or records that (1)were obtained prior to the employee’s employment, (2) were prepared by identifiable examination committee members, or (3) were obtained in connection with a promotional exam.
Employers are required to give an employee or job applicant, upon request, a copy of any instrument that the employee or applicant has signed relating to the obtaining or holding of employment according to Labor Code Section 432.
Employers are required to keep accurate payroll records on each employee, and such records must be made readily available for inspection by the employee upon reasonable request. Additionally, when a piece rate or incentive plan, such as a commission plan, is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. The employer must maintain accurate production records according to IWC Orders 1 through 15, Section 7, and IWC Order 16, Section 6.
All employers must provide employees or their representative(s) access to accurate records of employee exposure to potentially toxic materials or harmful physical agents according to Labor Code Section 6408(d).
Employment records may be subpoenaed from a current or former employer by a third party. If employment records are subpoenaed, the employee must be notified and the employee has the right to object to production of the records according to Code of Civil Procedure Section 1985.6(e).