BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1707|
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THIRD READING
Bill No: AB 1707
Author: Assembly Labor and Employment Committee
Amended: 6/1/07 in Assembly
Vote: 21
SENATE LABOR & INDUSTRIAL RELATIONS COM. : 3-2, 7/11/07
AYES: Migden, Kuehl, Padilla
NOES: Wyland, Ackerman
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 47-31, 6/6/07 - See last page for vote
SUBJECT : Private employment
SOURCE : California Rural Legal Assistance Foundation
DIGEST : This bill revises requirements of existing law
concerning an employees right to inspect personnel records.
ANALYSIS : Existing law allows employees and various
government agencies to have the right to access certain
records in certain circumstances. Every employee has the
right to inspect the personnel records that their employer
maintains relating to his/her performance or to any
grievance concerning the employee. The law also does the
following:
1.Requires the employer to make the contents of those
personnel records available to the employee at reasonable
CONTINUED
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intervals and at reasonable times.
2.Gives employers three options with regard to storing and
allowing access of records:
A. Keeps a copy of each employee's personnel
records at the place where the employee reports to
work.
B. Makes the employee's personnel records available
at the place where the employee reports to work
within a reasonable period of time following the
employee's request.
C. Permits the employee to inspect the personnel
records at the location where the employer stores
the personnel records, with no loss of compensation
to the employee.
3.Gives the Labor Commissioner the discretion to adopt
regulations that determine the reasonable times and
reasonable intervals for private employers at which they
must provide these personnel records.
4.Specifies that an employee's right to view his/her
personnel file doesn't apply to the following:
A. Records relating to the investigation of a
possible criminal offense.
B. Letters of reference.
C. Ratings, reports, or records that were obtained
prior to the employee's employment, prepared by
identifiable examination committee members, or
obtained in connection with a promotional
examination.
C. Other specified public employees (e.g.,
employees subject to the Public Safety Officers
Procedural Bill of Rights).
Under current law, an employee doesn't have an absolute
right to a copy of his/her entire personnel records,
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however, he/she does have a right to a copy of any document
the employee has signed relating to obtaining or holding
employment (subject to a reasonable fee for each copy).
Existing law also requires employers to maintain
comprehensive payroll records and make them available to
current or former employees, to inspect or copy, upon
reasonable request. The employer must comply with the
request within 21 days of the request. Failure by the
employer to comply entitles the current or former employee,
or the Labor Commissioner, to recover a penalty of $750.00.
An employee may also bring an action in court to require
compliance with the request and, in any such action, is
entitled to recover costs and reasonable attorney's fees.
(Labor Code 226)
This bill revises requirements of existing law concerning
an employee's right to inspect personnel records.
Specifically, this bill:
1. Allows both current and former employees, and their
representative, to both inspect and copy their personnel
records.
2. Allows the employer to take steps to verify the identity
of a current or former employee, or their
representative, as specified.
3. Requires an employer to maintain personnel records for
at least three years following an employee's termination
of employment.
4. Establishes a specific 21-day timeframe for an employer
to comply with an employee's request to inspect their
personnel records.
5. For current employees, requires an employer to make the
employee's personnel records available for inspection,
or provide copies as requested by the employee, at the
place where the employee reports to work, or at another
location agreeable to the employer and requester without
loss of compensation to the employee.
6. For former employees, requires an employer to make the
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employee's personnel records available for inspection,
or provide copies thereof, at the location where the
employer stores the records. A former employee may
receive copies by mail if he or she reimburses the
employer for actual postal expenses.
7. Allows the employer, prior to making records available
for inspection or providing copies, to redact the name
of any non-supervisory employee contained therein.
8. Allows a current or former employee, or the Labor
Commissioner, to:
A. Recover a $750 penalty for non compliance from
the employer.
B. Allows them to bring an action for injunctive
relief to ensure compliance, and entitles them to
costs and reasonable attorney's fees.
9. Provides that a violation of the provisions in this
section of code would constitute an infraction.
Comments
Current law allows employees to have access to certain
records under certain circumstances, among which is access
to payroll records. An employer must make payroll records
available, within 21 days of a written request, to an
employee in order for inspection and copying. If an
employer does not comply, they are imposed a $750.00
penalty, and an employee may bring an action in court to
require compliance. With regard to personnel records of an
employee, the law is not as explicit about access. This
bill attempts to ensure that current and former employees
have a right to inspect and copy their personnel files in
order to defend their rights under important state and
federal statutes. The bill attempts to do this by
clarifying and adding provisions to current law pertaining
to personnel records that will conform it to similar
protections already in existing law dealing with payroll
records.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
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Local: No
SUPPORT : (Verified 8/20/07)
California Rural Legal Assistance Foundation
American Federation of Television and Radio Artists,
AFL-CIO
California Conference Board of the Amalgamated Transit
Union
California Labor Federation, AFL-CIO
California Professional Firefighters
California State Employees Association
California Teamsters Public Affairs Council
Consumer Attorneys of California
Engineers and Scientists of California, IFPTE Local 20
International Longshore and Warehouse Union
Legal Aid Society - Employment Law Center
Professional and Technical Engineers, IFPTE Local 21
UNITE HERE!
United Food and Commercial Workers Union, Western States
Council
OPPOSITION : (Verified 8/20/07)
Associated Builders and Contractors of California
California Association of Public Authorities for IHSS
California Chamber of Commerce
California Employment Law Council
California Hospital Association
California Manufacturers & Technology Association
Department of Finance
ARGUMENTS IN SUPPORT : According to the author's office,
it is a fundamental right that employees must have access
to their personnel records in order to properly defend
their rights under applicable employment laws. However,
existing law is extremely vague and unclear, allowing
unscrupulous employers and their attorneys to use this fact
to their advantage to hide information that otherwise would
be disclosed. The author's office argues that this type of
uncertainty disadvantages employees, who have not seen the
records and therefore are not able to question the
employer's adverse employment actions against them.
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The California Rural Legal Assistance Foundation (CRLAF)
argues that workers with a limited understanding of English
have no real "access" to their personnel records when
access is limited to inspection only. Proponents support
the requirement under this bill that permits an employee to
bring a designated representative to review personnel
records. This is especially important for low-wage workers
who may lack the language or literacy skills to do a review
alone. Proponents believe a representative can help make
sure the worker fully understands the information in the
file, as well as his or her right to refute it.
According to the author's office, several years ago, Labor
Code Section 226 was amended to improve employees' rights
to inspect payroll records to ensure that they are being
compensated in accordance with existing law. This bill
simply conforms the protections for personnel records to
those that currently exist for payroll records. The
author's office argues that there is no logical distinction
for providing employees with such protections for payroll
records, but not for personnel records
ARGUMENTS IN OPPOSITION : Opponents raise several
concerns about this bill stating that several of the
requirements proposed are unreasonable and will simply
expose the employer to costly litigation to both the public
and private sector. Opponents are concerned that this
proposal may place undue burden on employers to change
their current recordkeeping and document access processes
and procedures. For example, they argue that the 21 day
requirement to comply with a request to inspect or copy
files does not take into account the amount of time it
might take to get the request to the appropriate department
within a large organization. Opponents argue that several
of the large companies store personnel files in remote
locations, centralized offices, some even outside of the
state. Also, many employers maintain personnel records
electronically in a central location, and may provide
access electronically. This bill does not recognize this
technology.
Opponents state that while payroll records inherently
relate only to the employee, information in personnel files
relating to performance and grievances may well involve
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other employees. Allowing employees to copy and remove
these records, without the many protections in the
litigation discovery process, could subject other employees
to harm, and once the records are out of the control of the
employers, the dissemination of these records cannot be
controlled. Also, opponents argue that current law does
not require an employer to maintain personnel records nor
does it define what constitutes a "personnel record."
Because there is no uniform definition of a "personnel
record," the employer is left to guess what documents must
be provided leaving the employer wide open to being
harassed or sued.
The California Association of Public Authorities for IHSS
(CAPA) has taken an oppose unless amended position on the
bill arguing that approximately 1/3 of the IHSS workforce
turns over every year due to low wages and inadequate
benefits. They argue that it would be a real challenge for
Public Authorities to warehouse and access the millions of
employee records that would accumulate over a ten-year
period. CAPA would like the bill to be amended to carve
out the wage and job classification records of IHSS
providers.
ASSEMBLY FLOOR :
AYES: Arambula, Bass, Beall, Berg, Brownley, Caballero,
Charles Calderon, Carter, Coto, Davis, De La Torre, De
Leon, DeSaulnier, Dymally, Eng, Evans, Feuer, Fuentes,
Galgiani, Hancock, Hayashi, Hernandez, Huffman, Jones,
Karnette, Krekorian, Laird, Leno, Levine, Lieber, Lieu,
Ma, Mendoza, Mullin, Nava, Parra, Portantino, Price,
Richardson, Ruskin, Salas, Saldana, Solorio, Swanson,
Torrico, Wolk, Nunez
NOES: Adams, Aghazarian, Anderson, Benoit, Berryhill,
Blakeslee, Cook, DeVore, Duvall, Emmerson, Fuller,
Gaines, Garcia, Garrick, Horton, Houston, Huff, Jeffries,
Keene, La Malfa, Maze, Nakanishi, Niello, Plescia, Sharon
Runner, Silva, Smyth, Spitzer, Strickland, Tran, Walters
NO VOTE RECORDED: Soto, Villines
NC:do 8/22/07 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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