There is nothing like a little bit of litigation to remind you of some best practices. When you get a request for payroll and personnel files, it pays to be thoughtful before you produce the records. I have blogged on many considerations, but since this issue seems to come up in my practice weekly, here are a few more.
First, even if the former employee or her attorney asks for time records, time & attendance reports, schedules or time punch records, you do not have to provide them. The statute only requires pay records which are essentially copies of the employee’s paystubs. Why give more information than necessary? Especially if it can raise questions about your rounding practices or methods for editing time.
Second, if the employee was terminated for some policy violation (perhaps for violating the harassment policy), you do not need to provide the entire investigation file. Indeed, in most circumstances you should not. The investigation file should be separate from the personnel file, with only the ultimate discipline in the personnel file. But there may be occasions when the investigation file is helpful to persuade a plaintiff’s attorney not to pursue a particular matter, and if so, you may want to consider providing it.
Third, if you have a signed arbitration agreement, be sure to produce it! And if one should be in the personnel file, but is missing, make every effort to find it before the production is due.
And finally, the I9 is not supposed to be part of the personnel file. Rather, it should be filed separately by purge date. The purge date is three years after hire or one year after termination, whichever is later. If that is a brain twister for you (and for many it is!), then use this simple online tool to figure out the purge date and file accordingly.
California already makes it easy for disgruntled former employees to sue employers; there is no reason to make it any easier.