Fishing for a Lawsuit: Tips and Tricks for Personnel Files and Pre-Litigation Records Requests
If you have ever received a pre-litigation records request, then you may already know that such a request tends to be a harbinger of a lawsuit on the horizon. Plaintiff’s lawyers regularly use Labor Code provisions to obtain pay and personnel records, before a lawsuit has been filed. While employees (or their representative) are undoubtedly entitled to receive these records, this “try before you buy” approach allows Plaintiff’s attorneys to assess the strength of their client’s claims, and, less obvious, allows Plaintiff’s attorneys to scour employers’ records for additional, company-wide violations. For employers who include more than they should in their employees’ personnel files, this could prove to be a costly mistake that could have been easily avoided.
Labor Code section 1198.5, which governs the production of an employee’s personnel file pre-litigation, does not identify which documents should be in a personnel file. Consequently, well-meaning employers often include more items than necessary. These items include, but are not limited to, investigation reports, medical documents, and worker’s compensation documents.
However, the most common, and most problematic item included in a personnel file, is a copy of the employer’s entire employee handbook. The issue here is that, while the employee may have signed an acknowledgment of receipt/review of the handbook (which can be included in his/her personnel file), the handbook itself may contain incorrect or outdated recitations of the law. The effect? Savvy Plaintiff’s attorneys take these incorrect or outdated policies and use them as the basis for a class action or Private Attorneys General Act (PAGA) representative action, predicated on an on-paper, company-wide misapplication of the law. (See Brinker v. Superior Court (2012) 53 Cal. 4th 1004.) And just like that, the employer faces a class action lawsuit when the employee’s file may not have indicated labor code violations had the file contained only the necessary documents.
So what are those necessary documents? As mentioned, Labor Code section 1198.5 is silent on this question. However, the Department of Labor Standards Enforcement (DLSE) has provided some guidance. According to the DLSE, categories of records that are generally considered to be “personnel records” are those that are used or have been used to determine the employee’s qualifications for promotion, additional compensation, or disciplinary action, including termination. The following are some examples of “personnel records”:
- 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
This list is not exhaustive and employers are encouraged to seek a comprehensive review of the employee’s file by an employment law attorney before providing to the employee or his/her representative by the statutory or agreed upon deadline[i].
The key to avoiding lawsuits is to engage in preventative best practices early, which, in this case, begin when the employee is hired and their personnel file is created.
[i] Records requested pursuant to Labor Code sections 226 (pay records) and 1198.5 (personnel file) must be provided within 21 and 30 days, respectively, or as agreed upon between the employer/employer representative and the employee/employee representative.