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Personnel File Request Ignored? California

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  • Personnel File Request Ignored? California

    I worked for a company that outsourced its Human Resources department. The outsourced firm handled all paperwork related to pay, vacation tracking, giving management advice to protect them from employee claims, etc. At the time I was terminated, they handled my termination paperwork as well.

    Recently, I decided I should review my personnel file to see what my exboss put in it. I made the request to this outsourced HR company, both by voicemail and email. A week has passed yet they have not acknowledged either of these requests.

    I am aware of the 'rule' in California, that they are supposed to respond within 21 days. However, I also noted at the end of some DSLE (I think) statement that there is no 'teeth' to the rule, and that if they ignore you, then it is up to you to seek legal redress through the courts, etc. Is this true?

    Also, I need to know if I am asking the right place. I thought contacting the outsourced HR firm made sense, as they handled everything else related to my employment and presumably would maintain the personnel files. I am pretty sure they do, since I was told that at the time I was terminated, my boss forwarded certain emails we had exchanged to them (he was looking for ways to justify his despicable actions) and presumably they put those in my file.

    Can they just ignore me? Do they have an obligation to forward my requests on to the employer if they do not have possession of personnel files? Do I have the right to add MY statement to counteract any untruths made about me by others?

    Thanks for your input.

  • #2
    California - Former employee's right to examine their own personnel file:
    State law applies only to "employees," which is defined by the Labor Commissioner to mean persons currently employed, laid off with reemployment rights, or on leave of absence. But a terminated employee who wishes to inspect files relevant to termination may invoke the law for the duration of the limitations period applicable to any violation of law the employee claims occurred as a result of the termination.

    (Current employees at reasonable intervals may inspect their personnel files.)
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

    Comment


    • #3
      Betty3: State law applies only to "employees," which is defined by the Labor Commissioner to mean persons currently employed, laid off with reemployment rights, or on leave of absence.

      Just to be clear - Labor Code 226 and the DLSE website make it very clear that both current and former employees are legally entitled to review their personnel files. http://www.dir.ca.gov/dlse/FAQ_Right...onnelFiles.htm

      anon-y-mouse: I am aware of the 'rule' in California, that they are supposed to respond within 21 days. However, I also noted at the end of some DSLE (I think) statement that there is no 'teeth' to the rule, and that if they ignore you, then it is up to you to seek legal redress through the courts, etc. Is this true?

      If your employer fails to comply with the law, you may have to seek legal redress through the courts. However, the law does have '"teeth" and employers who elect to violate the law may be in for a big "bite:"

      Labor Code 226(f): A failure by an employer to permit a current or former employee to inspect or copy records within the time set forth in subdivision(c) entitles the current or former employee or the Labor Commissioner to recover a seven-hundred-fifty-dollar ($750) penalty from the employer.

      Labor Code 226(g): An employee may also bring an action for injunctive relief to ensure compliance with this section, and is entitled to an award of costs and reasonable attorney's fees.
      Barry S. Phillips, CPA
      www.BarryPhillips.com

      IRS Circular 230 Disclosure: This response is intended to provide general information and written for educational purposes only. It does not establish a client relationship. This communication is not intended to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to any party any matters addressed herein.

      Comment


      • #4
        Originally posted by BSPCPA View Post
        Just to be clear - Labor Code 226 and the DLSE website make it very clear that both current and former employees are legally entitled to review their personnel files. [url]http://www.dir.ca.gov/dlse/FAQ_RightToInspectPersonnelFiles.htm[/url
        Thanks - my reference gave info I quoted & Ca labor code 1198.5 & DLSE Pol. & Procedures memo # 76-2 (1-15-76)
        Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

        Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

        Comment


        • #5
          Still No Response

          Thank you. Yes, my understanding is that even though I am a former employee, I have the right to view my file. It's possible the HR company will take the full 21 days before giving anything to me, or it's possible they will just stonewall and five me nothing, and take the risk that I won't press the issue. They are in the business of protecting their bread and butter (my ex employer), so they are not on my side.

          Question, do I need to follow-up with a third request to them via certified mail? I've already left a voicemail and sent an email (which I kept a copy of). That seems plenty to me.

          Also, does anyone here believe it necessary that I need to make this request to my actual employer, not their HR outsourcing company? I would REALLY prefer not to talk to anyone at my old company -- my termination was psychogically devastating -- but the HR company may say 'we didn't get back to you because we don't maintain your personnel files, your ex employer does'.

          I just find it strange they have said zero even I have left two messages.

          Comment


          • #6
            anon-y-mouse: Do I need to follow-up with a third request to them via certified mail? I've already left a voicemail and sent an email (which I kept a copy of). That seems plenty to me.

            Also, does anyone here believe it necessary that I need to make this request to my actual employer, not their HR outsourcing company? I would REALLY prefer not to talk to anyone at my old company -- my termination was psychogically devastating -- but the HR company may say 'we didn't get back to you because we don't maintain your personnel files, your ex employer does'.


            I advise that you take the proverbial "belt and suspenders" approach - send a letter via certified mail to both your employer and the HR outsourcing company. Explain in your letter that you have sent e-mail correspondence and left voice messages - all of which have been ignored. Also, make your ex-employer and HR organization aware that you know the law and the remedies available to you if they refuse to let you review your personnel file and provide you with copies of all documents you signed. Enclose a copy of this DLSE web page for their review http://www.dir.ca.gov/dlse/FAQ_Right...onnelFiles.htm Lastly, give them a convient way for them to reach you - either by cell phone, home phine, etc and point out that time is of the essence.

            History tells me that if you take the above action, you will receive a prompt response and be quickly afforded the opportunity to review you personnel file.
            Barry S. Phillips, CPA
            www.BarryPhillips.com

            IRS Circular 230 Disclosure: This response is intended to provide general information and written for educational purposes only. It does not establish a client relationship. This communication is not intended to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to any party any matters addressed herein.

            Comment


            • #7
              Hi Again -- The below is excerpted from 226 (c)...what does 'affirmative defense' mean in this context? It sounds like the company could find some other explanation for not producing the file (or allowing me to review it) that would be permissable. Am I reading this correctly? For example, they could say, "Oh no, the box or files containing that employee's records was/were destroyed by water damage", etc.

              "An employer who receives a written or oral request to inspect
              or copy records pursuant to subdivision (b) pertaining to a current
              or former employee shall comply with the request as soon as
              practicable, but no later than 21 calendar days from the date of the
              request. A violation of this subdivision is an infraction.
              Impossibility of performance, not caused by or a result of a
              violation of law, shall be an affirmative defense for an employer in
              any action alleging a violation of this subdivision. An employer may
              designate the person to whom a request under this subdivision will be
              made."

              One more question: I noticed some of the labor code applies only to employers with a certain number of employees (applies only if 25+ employees, for example). Is the right to review one's personnel also available to those who worked for small companies? I believe I read somewhere that in California any employer with five or more employees was subject to the rules, but I do not recall where I read that (nor can I say what area of employment law the statement related to).

              Comment


              • #8
                anon-y-mouse: What does 'affirmative defense' mean in this context?

                In litigation, "affirmative defenses" operate to limit, excuse, or avoid a defendant's culpability or civil liability, even if the factual allegations of plaintiff's claim are admitted or proven.

                A clear illustration of an affirmative defense in this context would be as follows: You request to review your personnel file which your employer stores, along with all other employee personnel files, in Building ABC. Two days after you submitted your request to review your personnel file, an earthquake hit southern California, demolishing the ABC building - resulting in your employer not being able to retrieve your personnel file. Although your employer did not provide you with your personnel as required by the strict letter of the law, the facts and circumstances surrounding the situation give rise to an affirmative defense -- most likel;y excusing your employer from any liability.
                Barry S. Phillips, CPA
                www.BarryPhillips.com

                IRS Circular 230 Disclosure: This response is intended to provide general information and written for educational purposes only. It does not establish a client relationship. This communication is not intended to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to any party any matters addressed herein.

                Comment

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