Many of our callers reach out to us immediately after having been fired. Traumatized and stressed, they often forget the cardinal rule: Ask for your personnel file on your way out that door.
Often these documents will provide the information necessary to get an attorney to want to take on your case. For example, when one is fired, even in an “at will” state like California, the employer will take steps to protect itself, usually providing a reason for the termination to the employee. If she happens to be a pregnant female, they may include a note at the end of the file that says she failed to perform her duties as anticipated, and that would be the reason for the termination. While they don’t need a reason, they cannot have terminated her employment because she was pregnant, as that would be an unlawful reason to fire her. If she requests a copy of her personnel file, and it is chock full of stellar reviews and a perfect attendance record, the “reason” they gave for the termination might begin to look suspicious to a judge or jury.
Most firms will request you acquire the file prior to discussing the merits of your case. If your employer has documented repeat incidents of poor performance during the course of your employment, it becomes much harder for a lawyer to argue that your termination was instead based on discriminatory animus. In at at-will state such as California, the burden is on you to prove otherwise.
Should you find yourself in this position, here is a sample letter you can use to request your file from your employer:
********SAMPLE PERSONNEL FILE REQUEST LETTER*********
Dear Human Resources Department:
Please allow this letter to serve as a request for my employment records maintained by NAME OF YOUR EMPLOYER. I am seeking complete copies of the following items:
My personnel records maintained by EMPLOYER that relate to my performance or to any grievance concerning me. (Lab. Code, § 1198.5, subd. (a)(b)
Any instrument signed by me relating to the obtaining or holding of employment. (Lab. Code, § 432.)
Any and all of my payroll records. (Lab. Code, § 226, subd (b).)
Please provide these documents as soon as possible, but not later than 21 days from the date of this request for my payroll records and 30 days from the date of this request for the remaining records.
Thank you for your attention to this matter.
Very truly yours,
Labor Code 198.5
(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 employee’s performance or to any grievance concerning the employee.
(b) (1) The employer shall make the contents of those personnel records available for inspection to the current or former employee, or his or her representative, at reasonable intervals and at reasonable times, but not later than 30 calendar days from the date the employer receives a written request, unless the current or former employee, or his or her representative, and the employer agree in writing to a date beyond 30 calendar days to inspect the records, and the agreed-upon date does not exceed 35 calendar days from the employer’s receipt of the written request. Upon a written request from a current or former employee, or his or her representative, the employer shall also provide a copy of the personnel records, at a charge not to exceed the actual cost of reproduction, not later than 30 calendar days from the date the employer receives the request, unless the current or former employee, or his or her representative, and the employer agree in writing to a date beyond 30 calendar days to produce a copy of the records, as long as the agreed-upon date does not exceed 35 calendar days from the employer’s receipt of the written request. Except as provided in paragraph (2) of subdivision (c), the employer is not required to make those personnel records or a copy thereof available at a time when the employee is actually required to render service to the employer, if the requester is the employee.
(c) The employer shall do all of the following:
(1) With regard to all employees, maintain a copy of each employee’s personnel records for a period of not less than three years after termination of employment.
(2) With regard to current employees, make a current employee’s personnel records available for inspection, and, if requested by the employee or his or her representative, provide a copy thereof, at the place where the employee reports to work, or at another location agreeable to the employer and the requester. If the employee is required to inspect or receive a copy at a location other than the place where he or she reports to work, no loss of compensation to the employee is permitted.
(3) (A) With regard to former employees, make a former employee’s personnel records available for inspection, and, if requested by the employee or his or her representative, provide a copy thereof, at the location where the employer stores the records, unless the parties mutually agree in writing to a different location. A former employee may receive a copy by mail if he or she reimburses the employer for actual postal expenses.
Labor Code 432 If an employee or applicant signs any instrument relating to the obtaining or holding of employment, he shall be given a copy of the instrument upon request.
Labor Code 226 (b) An employer that is required by this code or any regulation adopted pursuant to this code to keep the information required by subdivision (a) shall afford current and former employees the right to inspect or copy records pertaining to their employment, upon reasonable request to the employer. The employer may take reasonable steps to ensure the identity of a current or former employee. If the employer provides copies of the records, the actual cost of reproduction may be charged to the current or former employee.
If your employer doesn’t comply in a timely fashion, you know the drill. Call an employment attorney.
LAZEAR MACK LLP
Attorneys at Law
436 14th Street, #1117
Oakland, CA 94612