Los Angeles Employers- DO NOT Turn Over These 5 Documents to Employees or Their Attorneys.
Employees from time to time may request to see their employee file. However, employees usually only request their file (1) when they plan on suing you or (2) their attorney is requesting it in preparation to sue you. Turning over documents to an employee or their attorney is risky as what is turned over will be assessed to assert claims against your business. If you get a records request from employee or their representative/ attorney you should contact an attorney right away. Anything you turn over will be used against you, so I'll want to have a candid conversation with an attorney about potential liability.
Records requests come in two forms:
Labor Code § 226- Pay records- these must be turned over within 21 days of oral or written request. This request is for wage statements.
Labor Code § 1198.5- Personnel file- these must be turned over within 30 days of receipt of written request. There is no specific items of what constitutes a "personnel file," but the Department of Labor Standards Enforcement (DLSE) has hinted the files would include:
Application for employment;
Payroll authorization form;
Notices of commendation, warning, discipline, and/or termination;
Notices of layoff, leave of absence, and vacation;
Notices of wage attachment or garnishment;
Education and training notices and records;
Performance appraisals/reviews; and
Now here are the files you SHOULD NOT turn over if you receive one of these requests:
Records relating to the investigation of a possible criminal offense;
Letters of reference;
Ratings, reports, or records that were (a) obtained from the employee’s prior employer; (b) prepared by identifiable examination committee members; and/or (c) obtained in connection with a promotional examination;
Medical records of the employee; and
Employee Handbooks or other stand alone written policies;
The employee handbooks can be good or bad depending on the amount of attention and employer gives them. Please watch my video here about how bad employee handbooks are and how to make them better. If you have an out of date handbook and the employee's attorney gets a hold of it then can potentially create a class action or PAGA claim against your business (video on PAGA here.) The less you can turn over, but still comply with the request, the better. Again, this is why it is advisable to talk to an attorney before sending over employee files.
If you have any employment law questions or curiosities piqued by this post feel free to reach out to me. You may contact me by phone at (818) 306-0686 or by email at email@example.com
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The information in this post is for general information purposes only. Nothing on this post should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.