Whose job file is it, anyway?

In my last column, we discussed whether an employer must provide a current or former employee access to his or her personnel file and payroll records. This week, we’ll look at the specific information an employee may review.

The general rule is that a current or past employee has the right to inspect his or her personnel and payroll records, but what does that include?

Typically, you need to retain and provide his or her job application, payroll authorization form, wage garnishments, education or training certificates, performance appraisals and reviews, attendance records, and all employee action documents, including commendations, warnings, disciplinary actions, layoffs, leaves of absence, vacations and termination notices.

As with most laws, there are exceptions. You need not provide access to reference letters, nor are you required to provide access to records relating to a possible criminal offense. Employees have no right to access records obtained before the employee was hired.

If an employee or job applicant makes a request for any documents that they have signed relating to obtaining or keeping a job, you must provide them a copy, not just allow them to inspect.

The reference letter exception excludes not only pre-hire letters, but also responses from persons who were asked about the character or ability of the employee after the person was hired.

If there are reference letters in an employee’s file and you don’t want to share them or they’re confidential, you may choose to provide the former employee with the author’s name or a comprehensive summary of the contents.

If the file includes any third-party confidential communications, those people have a right to keep their names, addresses and telephone numbers confidential.

I’m not sure whether it applies to your particular business, but if your employees are exposed to potentially toxic materials or harmful physical agents, you must provide accurate records of that exposure.

Be careful with the timeline in allowing an inspection. If you receive a written or oral request from a current or former employee to inspect or copy his or her payroll records, you are required to comply as soon as possible, but no later than 21 calendar days from the request. If you don’t comply in time, the employee can recover a penalty from you.

It’s also a good idea to keep a record or log of employee inspection requests, including when the request was made, whether you allowed the inspection, and if so, when it took place.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached atmary@hudsonluros.com or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information. In a perfect world we wouldn’t need disclaimers — or attorneys.