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Your Employee File – An Employment Lawyer’s Perspective

Employee Personnel File Employment Attorney Request Employee FileAll current and former employees have the right to inspect and copy their employment file. Every employment attorney knows this fact. But what exactly are your rights? What are you entitled too? Can your company refuse?

California Labor Code section 1198.5(a) states:

Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee.

Generally, an employer must comply with your request within 30 days. If they fail to do so you should contact an experienced employment lawyer.

What must the employer give the employee?

According to Labor Code section 432 and the Department of Fair Employment & Housing (DFEH) 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.

Moreover, files that are generally considered to be “personnel records” are those that are used to determine an employee’s qualifications for promotion, pay raises, or disciplinary action, including termination. The DFEH has some examples of “personnel records” it believes should be disclosed:

  1. Application for employment
  2. Payroll authorization form
  3. Notices of commendation, warning, discipline, and/or termination
  4. Notices of layoff, leave of absence, and vacation
  5. Notices of wage attachment or garnishment
  6. Education and training notices and records
  7. Performance appraisals/reviews
  8. Attendance records

What happens if my employer refused to disclose my file?

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). Despite this law, it is rare than an employer will go to jail for this. However, you may try to get penalties via section 1198.5(k), which states:

If an employer fails to permit a current or former employee, or his or her representative, to inspect or copy personnel records within the times specified in this section…the current or former employee…may recover a penalty of seven hundred fifty dollars ($750) from the employer.

Employment Attorney – What about my payroll records?

According to Labor Code section 226(b), employers are required to permit current and former employees to inspect or copy payroll records pertaining to that current or former employee. An employer who receives a written or oral request from a current or former employee for his or her payroll records shall comply with the request within 21 calendar days.


Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Filed under Discharge & Layoffs, Employment Records, Labor Law, Uncategorized

Sexual Harassment Series #1: Hostile Work Environment

Hostile Work Environment in California - Sexual HarassmentHere is the common story: John, a male supervisor, and Jane, a female employee, work closely together. They are friends, and have a fun working relationship. They regularly get chummy with each other and enjoy telling each other jokes. But one day, John asks about her sex life, or slaps her on the butt, or tells her that she has a great body. Since their relationship is good, Jane laughs it off and dismisses it.

The next day John throws another sexual comment her way, or lets his eyes drift to her breasts, or tells her that if he were single, he’d be asking her out for a drink. Again, Jane dismisses it as friendly banter.

But the next day, it continues. This time John sits on her desk and tells a sex joke or gets a little too close when nobody else is around. She smiles and is polite, but it’s starting to concern her. Worried she would ruin the relationship, Jane says nothing. After all, it’s not a big deal…. Women deal with this sort of behavior all day every day…right?

But the following week it continues, and the week after that. Before Jane even notices weeks turn into months. Eventually, she gets fed up and she tells HR. But when she sits down with HR, she has trouble articulating what John is doing. But she gets the message across and HR says they are going to deal with it. But they don’t. You see, John is a valuable asset to the company, and Jane isn’t as valuable. The company doesn’t want to lose John–he makes them a lot of money.

Then one day, John goes too far. He corners her, kisses her, or grabs her, or does something even worse. Jane rejects his advances, and the lust in his eyes turns to anger. Understandably, Jane starts avoiding John. There is an awkward rift between them. But John is her boss, and her job performance begins to suffer.

A week or two later, Jane gets a poor performance review, or she gets passed over for a promotion, or she gets demoted. Then, a month or two later, she gets fired.

This story repeats itself all across California. This is a typical “hostile work environment” sexual harassment case. Here, the harassment was bad, but it often is much worse. What can Jane to do? Should she just suck it up and find a new job? What if that was her dream job? What if she can’t find a new job? What if she needs to feed her children?

In California, sexual harassment (legally speaking) can take one of two forms: “quid-pro-quo” or “hostile work environment.” Here, I cover what a “hostile work environment” looks like and what you can do to stop it. I will cover the other type, ‘quid-pro quo,’ in a future post.

Keep reading after the jump…. Continue reading


Filed under Harassment, Sexual Harassment

Employee Duty of Loyalty

Orange County, CA – What is the duty of loyalty?  Does it apply to a employee?  Employer?  What is California’s rule regarding the duty of loyalty?

These are all extremely valuable questions for both the employer and the employee to have answers to.  First, the employee duty of loyalty basically means this: An employer has the right to the undivided loyalty of its employees. The duty of loyalty is breached and may give rise to a tort cause of action on behalf of the employer when the employee takes action hostile to the employer’s best interests.  Stokes v. Dole Nut Co. (1995) 41 CA4th 285, 295.

What on earth does that mean?  It means that an employee isn’t supposed to compete with his or her employer while he or she is employed.

Well, what does “compete” mean?  Easy answers after the jump….

Continue reading

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Filed under Duty of Loyalty, Leaving a Job, Non-Compete Agreements, Restrictive Covenants, Trade Secrets, Unfair Competition