Employer Obligations: Attorney Requests for Employment Records Explained

Employers often encounter requests for an employee’s personnel file, whether it’s from current and former employees, creditors, courts, attorneys, prospective employers, or some other source.

The most frequent reasons for employment record requests include an investigation into the employer’s compliance with federal and state laws, or an employee’s spouse or former spouse seeking payroll and benefit-related information pursuant to domestic relations proceedings.

Depending on the type of business and where the employer is located, it may or may not be obligated to comply with an employment record request. The federal government and many state governments have enacted statutes permitting public and private-sector employees to access their personnel and medical record files.

However, employers have a competing interest in protecting the confidential information that employment records may contain, and private-sector employers generally regard employment records as property of the employer.

While having an employment record policy may make sense, it is important for any company that decides to maintain such a policy to keep in mind that there may be state or federal law that requires the disclosure of certain records.

Employment Record Requests

For example, if an employee is terminated, quits, or even continues with the employer but makes a request individually or through a lawyer for all payroll records, timekeeping records and personnel files, the employer's obligation to respond is governed by the California Labor Code.

First, if the request is made through legal counsel, make sure that the authorized representative has provided a clear and unambiguous Authorization for the Release of Information signed by the employee (or terminated employee). If not, request and obtain same before any production.

Reasonable Times

Next, calendar the time for response and production of documents: 21 days for payroll records (Labor Code section 226) and 30 days for personnel files (Labor Code section 1198.5) Failure to timely respond to the records request will subject the employer to a $750.00 penalty paid to the employee, former employee or Labor Commissioner.

Typically, this might be the initial employment application, employment contract, tax withholding documents and direct deposit information. It might also include employee signed reviews, notices and/or warnings, discipline, inquiries or complaints.

The below records requests (which may include documents the employee signed relating to their written request) have specific timing requirements and penalties for not providing in reasonable intervals of time, so the best practice would be to provide employees these records within the shortest time period set forth below.

Payroll Record Requests

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. This likely will include wage statements and time records.

Labor Code Section 226(a)

California law requires employers to provide employees with an itemized wage statement every pay period or every two weeks.

Per section 226(a), the applicable payroll records include:

• Gross wages earned during the pay period.
• Total hours worked during the pay period (for non-exempt workers).
• The number of piece-rate units earned and the piece rates (if applicable).
• Deductions (such as for social security).
• Net wages earned during the pay period.
• The date range of the pay period.
• The employee’s name and last four digits of his/her social security number.
• The employer’s name and address.
• The hourly rates and number of hours worked at each rate (for non-exempt workers).

Employees who do not receive valid wage statements are entitled to $50 for a first paystub violation and $100 for any subsequent violations (up to $4,000). If an employee has to bring a civil action to recover these money damages, the employer is also liable to pay for any court costs and attorney’s fees.

Note: the itemized wage statement above is not required when “employee’s compensation is solely based on salary and the employee is exempt from payment of overtime.”

Overview of Labor Code Section 226

California Labor Code Section 226 requires employers to provide employees with an accurate itemized wage statement every pay period or every two weeks, which must include the following information:

• Gross wages earned during the pay period
• Total hours worked during the pay period (for non-exempt workers)
• The number of piece-rate units earned and the applicable piece rates
• All deductions (such as for social security)
• Net wages earned during the pay period
• The date range of the subsequent pay period
• The employee’s name and last four digits of his/her social security number
• The employer’s name and address
• The applicable hourly rates and number of hours worked at each rate

Example Pay Stub

In addition, employers are required to keep copies of payroll showing deductions for no less than three years. Plus they must allow past and current employees to inspect these records within 21 days of their request. Employers who fail to show these records to past or current employees commit an infraction, carrying a $750 civil penalty.

Labor Code Section 226(b)

Section 226(b) states: “An employer that is required by this code or any regulation adopted pursuant to this code to keep the information required by subdivision (a) [and] shall afford current and former employees the right to inspect or receive a copy of records pertaining to their employment, upon reasonable request to the employer. The employer may take reasonable steps to ensure the identity of a current or former employee. If the employer provides copies of the records, the actual cost of reproduction may be charged to the current or former employee."

California employers are required to follow Labor Code 226 by providing employees with itemized payroll statements even if employees do not care to receive them.

Personnel Records Request

Under California Labor Code section 1198.5, an employee or his or her attorney can request their personnel records, after which the personnel file must be produced “no later than 30 calendar days from the date the employer receives a written 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 inspect the records, and the agreed-upon date does not exceed 35 calendar days from the employer’s receipt of the written request.”

Section 1198.5 of the California Labor Code does not include a list of documents an employer should include in the personnel file and often times employers are overly inclusive of the documents they provide. Although not exhaustive, the Department of Labor Standards Enforcement (DSLE) has provided guidance by publishing a list of documents typically included in a personnel file:

• Application for employment;
• Payroll authorization form;
• Notices of commendation, warning, disciplinary action, and/or termination;
• Notices of layoff, leave of absence, and vacation;
• Notices of wage attachment or garnishment;
• Education and training notices and records;
• Employee's performance appraisals/performance reviews; and
• Attendance records.

The DSLE also notes that the personnel records do not include records relating to the investigation of a possible criminal offense or criminal conduct, letters of reference, or ratings, reports, or records that (a) were obtained prior to the employee’s employment, (b) were prepared by identifiable examination committee members, or (c) were obtained in connection with a promotional exam.

Responsive Documents

An employer is only required to comply with one request per year by a former employee to inspect or receive a copy of his or her personnel records.

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 personnel records under this section ceases during the pendency of the lawsuit in the court with original jurisdiction.

Attorney Written Request for Employment Records

Plaintiffs’ attorneys often request an employee’s personnel file and payroll records to assess the strengths and weaknesses of their client’s case prior to filing a formal complaint. Often, they review the records to find additional violations, such as wage and hour violations. The California Labor Code provides employees the opportunity to request both their personnel file and their pay records. Failure to provide the requested documents timely can expose the employer to a penalty.

Employment Attorney Contact

Seeking clarity on employment record requests? Gain peace of mind with legal counsel from Freeburg & Granieri, APC. Our experienced attorneys specialize in navigating California Labor Code requirements, ensuring your compliance and protection.

Schedule a consultation today to safeguard your business interests and employee rights. Don't face legal challenges alone—let us advocate for you. Contact us now for strategic legal support tailored to your needs.