Re: personnel & payroll records
As an employee rights attorney, this question is one I am asked almost weekly. I defer to the responses of my collegues, and especially that of Mr. Kirshbaum, whom I know and respect.
I would only add that the "teeth" behind Sections 1198.5 and 432 may be Labor Code Section 1199 (c) which makes it a misdeameanor to refuse to comply with 1198.5, and imposes a fine of NOT LESS THAN $100 and 30 days imprisonment. While such extreme action is unlikely to be sought by a local prosecutor, employers are aware that a disgruntled employee may seek the assistance of the local police for a wilfull failure to comply with the code.
What else might give some "teeth" to 1198.5? Labor Code Section 1174.5 imposes a civil penalty on an employer who fails to allow the Labor Commissioner or one of its employees to examine employment records to ascertain compliance with record keeping laws. Section 1174.5 also imposes a civil penalty for failure to maintain employment records. The "teeth" can be set as follows: The employer does not produce the records or allow the inspection because the records are not kept, in which case there is a violation of the duty to "maintain" the records in violation of Section 1174.5. The violation may be systemic, and involve hundreds of employees. If so, there is an action under the new California Labor Code Private Attorneys' General Act of 2004 permitting a class action to recover penalties for each employee for each violation. The new law also allows for recovery of attorneys fees and costs. So, a little matter of not producing a personnel file could turn into a major class action suit.
And now, for a practical point: personnel files are required to contain only a basic category of information: "records relating to the obtaining or holding of employment". (Labor Code Sec. 432) That's a vague description, and employers are crafty at maintaining multiple files, only one of which is the official "personnel file". Typically, the H.R. person's personal notes and investigation findings are kept in separate files. The bottom line: What you see is not all there is to see. Ultimately, a subpoena for employment records issued during a litigation is the only enforceable and comprehensive method of getting all the records in all the different files.
Another practical point: Sometimes the best way to see your records is before you alert your employer to the possibility of a lawsuit, and while you are still employed. Most employees know when their employment is at risk, and can proactively arrange a time to make the inspection before being "escorted" off the the premises.
While Section 432 limits what you can obtain from the file as copies, you can take notes of everything else you see (or what you would expect to see, but don't!).
