Requesting a Personnel File

Requesting your personnel file is usually the opening move in litigation. The statutes providing a right to access, inspection, and copying of payroll, personnel, and other documents in your personnel file enable workers to obtain records without having to file a lawsuit first. This is helpful in proving up your claims to an attorney working on your case, who, in turn, will use those documents to convince the employer’s attorney of the strengths and merits of the employee’s case. It helps promote settlement, but also helps clarify the relative positions of the employee and employer, potentially avoiding a falling-out in the first place.

Cal. Lab. Code, § 1198.5(a) entitles the employee to all of the employee’s personnel records maintained by the employer that relate to the employee’s performance or to any grievance concerning the employee.

Cal. Lab. Code, § 432 entitles the employee to any and all instruments signed by the employee relating to the obtaining or holding of employment.

Of particular interest in wage and hour claims, Cal. Lab. Code, § 226(b) entitles the employee to any and all of the employee’s payroll records and wage statements.

The first time the employee requests the records, they should do it directly, themselves. If an attorney is the first person to ask, the employer (reasonably) gets spooked, and assume a defensive posture in anticipation of litigation. There are a myriad of situations where the employee needs the personnel file, and either hasn’t decided on pursuing litigation, or actively does not want litigation.

In such a situation, I usually advise clients to submit a polite, casually phrased, but nevertheless clear written request, usually by email, but sometimes via text message.

“I, ______, request a copy of all my personnel and payroll records. Labor Code § 1198.5 provides that I am entitled to all records relating to my employee’s performance or to any grievance concerning me or my performance. Under Labor Code § 432, I am entitled to obtain copies of all documents I signed relating to my obtaining or holding of employment. Under Labor Code § 226, I’m entitled to all of my payroll records. Please let me know when I can expect to receive these records.” 

Labor Code § 1198.5(b)(1) provides that the employer “shall make the contents of those personnel records available for inspection to the current or former employee, or his or her representative … not later than 30 calendar days from the date the employer receives a written request[.]” Labor Code §226(c) sets forth that the payroll records shall be produced “no later than 21 calendar days from the date of the request.” Failure to comply with the request within the proscribed amount of time (either 21 or 30 days, depending on the type of records) results in a $750 penalty owed to the employee that the employee can obtain by filing a claim with the California Labor Commissioner’s office.