September 28, 2022

Volume XII, Number 271

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Ask A Litigator: What Should Be In An Employee’s Personnel File?

Current and former employees have a right to inspect their personnel file at reasonable times. So, when a current or former employee intends to bring or has brought a claim against their employer, they will likely request a copy of their personnel file. However, if the employer has failed to properly maintain their employee’s personnel files, there isn’t a rewind button to recreate that file. This is what litigators would like employers to know about employee personnel files.

Maintaining Employee Personnel Files

To comply with the requirements under California law to allow inspection of employee personnel files, an employer must maintain former employees’ personnel files for at least three years following the employee’s separation from the company.

What Should Be In the Personnel File

Under the California Labor Code, employers are required to give an employee a copy of any document that the employee signed to obtain and/or hold their employment.

  1. Recruiting and screening documents such as applications, resumes, and educational transcripts

  2. Job descriptions

  3. Handbook and policy acknowledgments

  4. Employment agreements, if applicable

Other records that are generally kept in personnel files are those used to determine an employee’s qualifications for promotion, additional compensation, or disciplinary action. This could include the following:

  1. Notices of commendation, warning, or discipline

  2. Notices of layoff, leave of absence, and vacation

  3. Education and training notices and records

  4. Performance reviews

  5. Attendance records

  6. Payroll authorization forms

  7. Termination notices and documentation

What Not to Keep In The Personnel File

The number one item that should not be kept in the employee’s personnel file is medical information. Under California regulations, medical information should be kept separate from the personnel file to protect the employee’s confidential information. Medical information could include records obtained as part of a workers’ compensation claim and/or the interactive process where doctor’s certifications are provided for a leave of absence or request for accommodations.

What is an Employee Not Entitled to Review

Under California law an employee does not have the right to review the following:

  1. Records relating to the investigation of a possible criminal offense

  2. Letters of reference

  3. Ratings, reports, or records that were:

    • Obtained from the employee’s prior employer

    • Prepared by identifiable examination committee members

    • Obtained in connection with a promotional examination

While having organized personnel files may not insulate an employer from a legal claim, having the appropriate documents retained for the appropriate amount of time and in the way required under California law will help streamline litigation for the employer and their attorney.

Jackson Lewis P.C. © 2022National Law Review, Volume XI, Number 42
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About this Author

Kristel B. Haddad Associate Los Angeles
Associate

Kristel B. Haddad is an Associate in the Los Angeles, California, office of Jackson Lewis P.C. She represents employers and individual defendants in a broad range of employment litigation including harassment, discrimination, retaliation, wrongful termination, leaves of absence, failure to provide reasonable accommodations, and unfair business practices. Ms. Haddad also handles class action wage and hour lawsuits and other complex employment litigation matters.

Ms. Haddad received numerous awards while attending University of Southern California, including Dean...

213-689-0404
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