Three code sections deal with general employment document retention. They are: Labor Code §§ 226, 432, and 1198.5. Code section 1198.5 was most recently amended and those amendments give employees more access to documents and require employers to retain more documents.

Labor Code § 432 requires an employer to give to an employee any document about obtaining or holding employment signed by the employee whenever an employee asks for a copy. Most employers rather not worry about what documents concern “obtaining or holding employment”, and, consequently, they retain all signed documents. Because the code section does not set a retention time limit, most employers retain those documents indefinitely and turn them over when an employee request all the documents he or she has signed.

Labor Code § 226 requires an employer to maintain wage statements for three years. (Labor Code § 226(a).) When an employee makes either a written or oral request to inspect and/or copy employment records, an employer must allow the employee to inspect and copy those records no later than 21 days after the request. (Labor Code § 226(b and c).) However, an employer has a duty to allow inspection and copying more quickly if that can be accomplished practically. (Labor Code § 226(c).) If the employer fails to respond in a timely manner, then it may be required to pay a $750 fine, costs, and attorneys’ fees. (Labor Code § 226(f and g).) If the employer provides copies, then it may charge the employee for the cost of copying the records.

Labor Code § 226(b) allows a current or former employee to “inspect or copy records pertaining to their employment”. Apparently, under that subsection, an employee has the right to inspect and copy more records than just the wage statements described in Labor Code § 226(a).

Labor Code § 1198.5 requires an employer to keep personnel records for at least three years. (Labor Code § 1198.5(c)(1).) The employee must demand to inspect and/or copy in writing. (Labor Code § 1198.5(b)(2)(A)(i and ii).) The employee may also demand that the employer provide copies, but the employer can ask to be reimbursed for copying costs. (Labor Code § 1198.5(b)(1).) The employer must comply within 30 days. (Labor Code § 1198.5(b)(1).) An employer must comply with only one request per year from a former employee. (Labor Code § 1198.5(d).) An employer is not required to comply with more than 50 requests per month. (Labor Code § 1198.5(p).) Employers with union represented workers may be exempt. (Labor Code § 1198.5(q).) Personnel records are broadly defined as records “relating to the employee’s performance or to any grievance concerning the employee.” (Labor Code § 1198.5(a).) Certain records are specifically excluded. (Labor Code § 1198.5(h).) If the employer fails to respond in a timely manner, then it may be required to pay a $750 fine, costs, and attorneys’ fees. (Labor Code § 1198.5(k and l).)

Under Labor Code § 1198.5, an employer has fairly broad discretion to determine what to keep in a personnel file. However, Labor Code §226(b) appears to allow an employee to have access to any records “pertaining to” his or her employment. Does 226 require an employer to maintain additional records beyond wage statements (Labor Code § 226(a)), signed documents ((Labor Code § 432), and personnel records (Labor Code § 1198.5(a))? Arguably, it does. On the other hand, an employer can argue that Labor Code § 226(b) only requires those records that it kept as part of its effort to reasonably comply with Labor Code §§ 226(a)), 432, and 1198.5.

Similarly, if an employee orally requests records under Labor Code § 226(b), will the employer be required to provide all retained documents within 21 days, even personnel documents governed by Labor Code § 1198.5? Again, the answer is arguably yes.

S. Ward Heinrichs, Esq.
Employment Law Office of Ward Heinrichs
4565 Ruffner Street, Suite 207
San Diego, CA 92111
858-292-0792
(858) 408-7543 (fax)