In any given month, we receive calls from employers whether or not they have to provide former employees with copies of their personnel files and/or payroll records. The easy answer in both situations is “yes.” In reference to personnel file requests it is obvious that the individual may be contemplating taking it to an attorney or their attorney has asked them to get a copy so that he or she may see if there is anything contained in it that may sway them in either a direction to file a lawsuit or to pass on filing. The reason for these requests normally have to do with an allegation of discrimination or wrongful termination. In some cases the attorneys get an authorization from the former employee to make the request. Under the California Labor Code they are entitled to it and the employer can be fined for not providing it. If you receive such a request and want us to review the file before it is sent just give us a call. As many of you probably already know, under the labor code an employee is only entitled to copies of papers that have been signed by the employee, however, these requests by former employees include copies of the entire file. We review the file to ensure that there is nothing in the file that should not be there (such as I-9’s as an example).
Payroll records request are different and the reason for asking for them normally has to do with a possible wage and hour claim. Honoring these requests are more cumbersome because they can ask for records going back 3 years. These requests can be either verbal (by current employees as well) or in writing. You must grant access to inspect the records within 21 days of the employee’s request. If you do not provide the records you can be required to pay the employee $750.00.
As a final note employers may also receive a subpoena for records (either for a personnel file or payroll records) and it has nothing to do with the employer. They are normally requested because there is some type of litigation going on. Look in the “caption” portion (Smith v. Smith) and look to see who is being sued. Divorces or some other civil litigation are both common for such requests. Don’t worry about those.