General Questions

My Rights in Seeing my Personnel File and Records

I have asked my employer to allow me to see my personnel file and records, but he has refused. What are my rights to see my personnel file and records?

California law requires that employers allow employees and former employees access to their personnel files and records that relate to the employee's performance or to any grievance concerning the employee. Labor Code Section 1198.5

Inspections must be allowed at reasonable times and intervals. To facilitate the inspection, employers must do one of the following:
(1) keep a copy of each employee's personnel records at the place where the employee reports to work,
(2) make the personnel records available at the place where the employee reports to work within a reasonable amount of time following the employee's request, or
(3) permit the employee to inspect the records at the location where they are stored with no loss of compensation to the employee.
The right to inspect personnel files and records does not apply to records relating to the investigation of a possible criminal offense, letters of reference, or ratings, reports, or records that:
(a) were obtained prior to the employee's employment,
(b) were prepared by identifiable examination committee members, or
(c) were obtained in connection with a promotional exam.

Employees of state agencies, with few exceptions, and public safety officers are exempt from the provisions of Labor Code Section 1198.5. However, other public employees are covered under Labor Code Section 1198.5, including, those of a city, county, special district, community redevelopment agency, or other political subdivision of the state.

Employers are required to give an employee or job applicant, upon request, a copy of any instrument that the employee or applicant has signed relating to the obtaining or holding of employment. Labor Code Section 432

Employers are required to permit current and former employees to inspect or copy payroll records pertaining to that current or former employee. Labor Code Section 226(b) Effective January 1, 2003, an employer who receives a written or oral request from a current or former employee to inspect or copy his or her payroll records shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request. A failure by an employer to permit a current or former employee to inspect or copy his or her payroll records within the aforementioned 21 calendar day period entitles the current or former employee to recover a penalty from the employer in a civil action before a court of competent jurisdiction. Labor Code Section 226, subdivisions (c) and (f)

Employers are required to keep accurate payroll records on each employee, and such records must be made readily available for inspection by the employee upon reasonable request. Additionally, when a piece rate or incentive plan, such as a commission plan, is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. The employer must maintain accurate production records. IWC Orders 1 through 15, Section 7, and IWC Order 16, Section 6

All employers must provide employees or their representative(s) access to accurate records of employee exposure to potentially toxic materials or harmful physical agents. Labor Code Section 6408(d)

Employment records may be subpoenaed from a current or former employer by a third party. If employment records are subpoenaed, the employee must be notified and has the right to object to production of the records. Code of Civil Procedure Section 1985.6(e)

1. Q. Do I have right to inspect my personnel file?

A. Yes. You may inspect your personnel file/records at reasonable times and intervals. To facilitate your inspection, your employer must do one of the following:
- Keep a copy of your personnel records at the place where you report to work,
- Make your personnel records available to you at the place where you report to work within a reasonable period time following your request to inspect such records, or
- Allow you to inspect your personnel records at the location where they are stored, with no loss of compensation to you.

2. Q. I am on a leave of absence. Do I still have the right to inspect my personnel file?

A. Yes. "Employee" is construed to mean a person who is currently employed, one who is laid off with rights of reemployment, or a person on leave of absence.

3. Q. I am a former employee who quit my job. Do I still have the right to inspect my personnel file maintained by my former employer?

A. Yes. Former employees also have the right of inspection until the statute or limitations on any claims they may have against their former employer expire.

4. Q. What does "at reasonable times and intervals" mean?

A. Although there is no specific definition for this phrase, a "reasonable times" is generally during the regular business hours of the office where personnel records are usually and ordinarily maintained or at anytime during the employee's regularly scheduled work shift, with sufficient time being available to permit the employee an ample opportunity to conduct a thorough inspection. The inspection time must be commensurate with the volume and content of the file, as arbitrary time limits that do not allow for a sufficient review are not within the spirit of the law. "Reasonable intervals" are usually once every year unless, there is reasonable cause to believe that the file has been altered in a manner that might adversely affect the interests of the employee, or the file contains information that is pertinent to an ongoing investigation affecting the employee, in which case more frequent inspections would be considered "reasonable."

5. Q. Do I need to put my request to inspect my personnel file in writing?

A. No. Your request may be either oral or written, or on a form provided by your employer. Information requested in writing must be solely for the purpose of identifying the requesting employee so as to avoid disclosure to ineligible individuals. It is preferred, however, to make requests of such documents in writing.

6. Q. Am I entitled to see everything in my personnel file?

A. No. By law, the right to inspect does not apply to:
- Records relating to the investigation of a possible criminal offense.
- Letters of reference.
- Ratings, reports, or records that were:
- Obtained prior to your employment,
- Prepared by identifiable examination committee members, or
- Obtained in connection with a promotional examination.

7. Q. What types of records in my personnel file am I entitled to see?

A. Categories of records that are generally considered to be "personnel records" are those that are used or have been used to determine an employee's qualifications for promotion, additional compensation, or disciplinary action, including termination. The following are some examples of "personnel records" (this list is not all inclusive):
- 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
- Attendance records

8. Q. Is my employer required to give me a copy of my personnel file?

A. No. Your employer is not required to provide you with a copy of your entire personnel file. However, the law does require that upon request you be given a copy of any instrument you signed relating to the obtaining or holding of employment. Additionally, the taking of notes regarding any document in your personnel file is permitted.

9. Q. Can my employer require that I inspect my personnel file on my own time?

A. Yes, your employer can require that you inspect your personnel file on your own free time. However, if you are required to travel to the location where the records are stored, the inspection must be during a time when you are required to render services to the employer, and you must be compensated for that time at your regular rate of pay.

10. Q. If I make a request of my employer pursuant to Labor Code Section 1198.5 to inspect my personnel file and my employer denies such a request, what can I do?

A. An employer who violates, refuses, or neglects to comply with an employee's right of inspection is guilty of a misdemeanor. Labor Code Section 1199(c)

Sexual Harassment at Work

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.

Unwelcome sexual advances, requests for sexual favors, and other verbal, written or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

* The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
* The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
* The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
* Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
* The harasser's conduct must be unwelcome.

It is helpful for the victim to inform the harasser directly that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available. It is also helpful to have proof of the harassment whether written or recorded.

Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by providing sexual harassment training to their employees and by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on sex or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.

If you feel that you are being sexually harassed at work, you can contact Deskin Law Firm so we can review your situation.

Hostile Work Environment

Workplace Harassment is a Form of Discrimination

Unlawful harassment is a form of discrimination that violates Title VII of the Civil Rights Act of 1964 and other federal authority.

Unwelcome verbal or physical conduct based on race, color, religion, sex (whether or not of a sexual nature and including same-gender harassment and gender identity harassment), national origin, age (40 and over), disability (mental or physical), sexual orientation, or retaliation (sometimes collectively referred to as "legally protected characteristics") constitutes harassment when:

  • The conduct is sufficiently severe or pervasive to create a hostile work environment; or
  • A supervisor's harassing conduct results in a tangible change in an employee's employment status or benefits (for example, demotion, termination, failure to promote, etc.).

Hostile work environment harassment occurs when unwelcome comments or conduct based on sex, race or other legally protected characteristics unreasonably interferes with an employee's work performance or creates an intimidating, hostile or offensive work environment. Anyone in the workplace might commit this type of harassment; a management official, co-worker, or non-employee, such as a contractor, vendor or guest. The victim can be anyone affected by the conduct, not just the individual at whom the offensive conduct is directed.

Examples of actions that may create sexual hostile environment harassment include:

  • Leering, i.e., staring in a sexually suggestive manner
  • Making offensive remarks about looks, clothing, body parts
  • Touching in a way that may make an employee feel uncomfortable, such as patting, pinching or intentional brushing against another's body
  • Telling sexual or lewd jokes, hanging sexual posters, making sexual gestures, etc.
  • Sending, forwarding or soliciting sexually suggestive letters, notes, emails, or images

Other actions which may result in hostile environment harassment, but are non-sexual in nature, include:

  • Use of racially derogatory words, phrases, epithets
  • Demonstrations of a racial or ethnic nature such as a use of gestures, pictures or drawings which would offend a particular racial or ethnic group
  • Comments about an individual's skin color or other racial/ethnic characteristics
  • Making disparaging remarks about an individual's gender that are not sexual in nature
  • Negative comments about an employee's religious beliefs (or lack of religious beliefs)
  • Expressing negative stereotypes regarding an employee's birthplace or ancestry
  • Negative comments regarding an employee's age when referring to employees 40 and over
  • Derogatory or intimidating references to an employee's mental or physical impairment

Harassment that results in a tangible employment action occurs when a management official's harassing conduct results in some significant change in an employee's employment status (e.g., hiring, firing, promotion, failure to promote, demotion, formal discipline, such as suspension, undesirable reassignment, or a significant change in benefits, a compensation decision, or a work assignment). Only individuals with supervisory or managerial responsibility can commit this type of harassment.

A claim of harassment generally requires ALL the following elements:

  1. The complaining party must be a member of a statutorily protected class;
  2. S/he was subjected to unwelcome verbal or physical conduct related to his or her membership in that protected;
  3. The unwelcome conduct complained of was based on his or her membership in that protected class;
  4. The unwelcome conduct affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with his or her work performance and/or creating an intimidating, hostile or offensive work environment.

What is Not Harassment?

The anti-discrimination statutes are not a general civility code. Thus, federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. Rather, the conduct must be so objectively offensive as to alter the conditions of the individual's employment. The conditions of employment are altered only if the harassment culminates in a tangible employment action or is sufficiently severe or pervasive to create a hostile work environment.

If you feel you may have a hostile work environment claim, feel free to contact Deskin Law Firm.

Employment Resources

There are several state and federal agencies that help with employment issues:

Determining Whether You Are an Independent Contractor or an Employee

Just because you have a contract that refers to you as an "independent contractor" does not mean that you actually are an independent contractor. The actual relationship that you have with your employer must be analyzed to determine whether you are an employee or an independent contractor.

There are many factors to consider to determine whether you are an independent contractor or employee. The most important factor is your employer's right to control the manner and means by which your work product is accomplished. If you control how you produce your work product then you are more likely an independent contractor. If your employer controls how you produce your work product then you are more likely an employee.Employers oftentimes improperly classify their employees as independent contractors so that they, the employer, do not have to pay payroll taxes, the minimum wage or overtime, comply with other wage and hour law requirements such as providing meal periods and rest breaks, or reimburse their workers for business expenses incurred in performing their jobs. Additionally, employers do not have to cover independent contractors under workers' compensation insurance, and are not liable for payments under unemployment insurance, disability insurance, or social security.

Just because you have a contract that refers to you as an "independent contractor" does not mean that you actually are an independent contractor. The actual relationship that you have with your employer must be analyzed to determine whether you are an employee or an independent contractor.

There are many factors to consider to determine whether you are an independent contractor or employee. The most important factor is your employer's right to control the manner and means by which your work product is accomplished. If you control how you produce your work product then you are more likely an independent contractor. If your employer controls how you produce your work product then you are more likely an employee.

Other factors to be considered:
- the amount of skill required to do the work;
- who owns the tools needed to do the work;
- whether you are working at your own office or at your employer's office;
- how long you have been working for your employer;
- whether your employer has the right to assign additional projects to you;
- the extent of your employer's discretion over when and how long you work;
- how your employer pays you;
- if your employer hires and pays your assistants;
- whether your employer gives you benefits;
- how your employer treats you with regard to taxes;
- how the work relationship may be terminated; and
- whether you receive vacation time.

Partners are not employees, but you must truly be a partner. Factors to consider to determine if you are actually a partner include:
- whether you share of financial risks or benefits;
- whether you are personally liable for partnership liabilities;
- whether you are investing in the business;
- whether you have voting rights in the business;
- whether you have the right to fire or hire employees; and
- whether you have the ability to exercise control over the business.

The potential liabilities and penalties are significant if you are treated as an independent contractor and later found to be an employee. If you feel that you improperly classified as an independent contractor, contact us for help in dealing with your situation confidentially.

Syndicate content