A former employee, or her attorney, sends you a letter demanding copies of the employee’s personnel file and pay records. Under AB 2674, the rules about what an employer has to do, and when they need to do it, will change slightly as of January 1, 2013.
As for pay records, current law already requires California employers to provide a copy of the employee’s wage statements (paystubs) that include specific information required under Cal. Labor Code Section 226 going back at least three years. Employers do not need to provide time sheets or pay records above and beyond what is on the employee’s paystub. The pay records must be provided within 21 calendar days of the request. Failure to timely provide copies of the pay records entitles the employee to a $750 penalty, plus a claim for injunctive relief and attorneys’ fees. None of these current requirements have changed.
What AB 2674 adds is a clarification that a “copy” of the pay records can include a duplicate or computer generated record that includes that same information as the itemized statements provided to the employee. The employer does not need to provide actual photocopies of the paystubs.
What an employer can not do is provide a computer generated printout that does not include all the information that should be on the paystub, such as gross pay, all deductions, net pay, hours worked, and the correct hourly rate for regular and overtime hours worked.
What about the personnel file? Current law under Cal. Labor Code Section 1198.5 already requires California employers to allow both current and former employees to either inspect their personnel file or obtain a copy of it (and you can charge the employee for the copy). What many employers do is only provide copies of signed documents from the personnel file under Cal. Labor Code Section 432, and then invite the current or former employee to set up an appointment at the worksite to inspect the entire file. Under AB 2674, this process will need to change.
First, there is now a statutory deadline of 30 days to either provide a copy or make the entire file available for inspection. The 30 days runs from the employer’s receipt of the request. The parties can agree to a longer time frame, as long as it doesn’t exceed 35 days. So, no stalling allowed. I have no idea why this deadline is different from the 21 days to provide pay records, but it is.
Second, the request for a copy or the inspection can be made by the former employee or her representative (i.e., attorney). This means that if the employer doesn’t give the entire file, the former employee’s attorney can come and inspect it.
Third, the employer is now allowed to redact the names of any non-supervisory employees contained in the records prior to copying or inspection.
Fourth, the employer can designate a person to whom requests should be made, and may prepare a form for use in requesting records.
Finally, if an employer fails to provide the records, the $750 penalty, plus a claim for injunctive relief and attorney’s fees, will apply.
Why these changes? To prevent employers from being evasive when such requests for records come in.
What does AB 2674 mean to you? All the more reason to keep the personnel files in order, to include everything they should (such as signed copies of any arbitration agreement, handbook acknowledgment, confidentiality agreement, employee discipline, performance reviews, pay notice) and to exclude the stuff that shouldn’t be in there (such as I9, background check, drug test results, interview notes, medical notes, and investigation materials including witness statements). Then when the request for personnel and pay records comes in, you’ll have nothing to hide and can simply comply.