Labor Code section 1198.5 is an important law that Plaintiff’s attorneys often use prior to a lawsuit. In most cases, an employer receiving one of these demand letters is going to be soon on the receiving end of a lawsuit. Read on for more information.
What is a Labor Code 1198.5 Inspection Demand?
Labor Code section 1198.5 starts off in a manner that is completely easy to understand:
(a) 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 employeeâ€™s performance or to any grievance concerning the employee.
With a few exceptions, employees have an absolute right to inspect and receive a copy of anything in their personnel file.
How Long Must I Maintain Personnel Records?
Section 1198.5(c) provides that:
(1) With regard to all employees, maintain a copy of each employeeâ€™s personnel records for a period of not less than three years after termination of employment.
The answer is three years… from the date after termination of employment.
As an aside, I could write a whole book about record keeping requirements under the Labor Code. For example, Section 1174 requires an employer to maintain payroll records for three years (from the payroll period).
Deadline to Respond
Section 1198.5 requires compliance with an inspection demand within 30 calendar days from the date the employer “receives a written request.”
Thus, you should take care to note the date upon which you received the 1198.5 demand. Don’t just work off of the date that appears on the letter itself.
If you are responding without the assistance of an attorney, you may want to send your response via certified mail or UPS. This will allow you to establish a paper trial should the Plaintiff allege that you failed to respond.
Penalty for Non-Response
Don’t want to respond to the former employee’s inspection demand? Do so at your own peril.
The penalty for non-response are a few: a $750 civil penalty; a civil injunction ordering compliance; and of course attorney’s fees to the plaintiff that must bring a lawsuit to enforce the law.
Violating this law can also result in criminal prosecution!
A 1198.5 inspection demand needs to be taken very seriously. Please call my office at (916) 333-2222 if you have received a 1198.5 demand and need help responding.