Each Worker Has the Right to Inspect Personnel File

Question: I have a question about having access to my employee records. I asked my supervisor to look at my personnel file. At first she said that she could not let me review it, but that she could read it to me. Then she told me I had to go to our Personnel Department to look at it, which is at a separate location from where I work. My manager admits that she has a separate employee file on me but was reluctant to show me. What are my rights to see all my employee files?

--J.D., Anaheim

Answer: You have a statutory right to inspect your employee personnel file during reasonable business hours. You have a right to obtain a copy of any document that you have signed. You also are entitled to review other files which have been used to determine the conditions of your employment. Very often, an employer may keep a separate file other than your own file with other relevant documents in it. These are subject to your inspection as well. There have been cases of restricted access to supervisors’ notes, however.

In addition to the statutory rights, you might have a contractual right to a review of your file depending upon the promises of your employer, especially in the employee handbook.

Even if you cannot keep copies of it, consider taking notes of the relevant documents in the file, taking a picture of it with your own camera or dictating the contents of your file into your tape recorder.

Try to ask for it, without any previous notice. The employer may allow you to see it without first reviewing it. Too much advance notice might allow them to “sanitize” the file to your detriment.

If they refuse you immediate access to your file, confirm your request in writing. This will help you later if they refuse your request.

The problem with asking for access to your file if you are still employed is that the employer might look at you suspiciously as trying to “position” yourself against the employer. This may hurt you later in more critical performance reviews in an effort by your employer to likewise position itself. The very act of your confirming your own position by looking at your file might actually cause or influence what you are trying to prevent--job insecurity.

--Don D. Sessions, Employee rights attorney, Mission Viejo

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Question: I’m a state lifeguard who works on a seasonal basis. Sometimes we are scheduled to call in, say at 10 a.m. We are told at that time whether we need to come in to work. If we do, we get paid. If not, we don’t. Is that legitimate?

--B.H., San Clemente

Answer: Yes. California’s wage rules provide that an employee must be compensated for at least two hours of work if the employee reports for work but is not actually put to work. However, merely calling in to work is not considered “reporting to work.” Instead, the employee must physically appear at the employer’s work site.

--William H. Hackel III, Employment law attorney, Spray, Gould & Bowers

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Question: Please clarify a point from a column a few weeks ago, which said that a person on disability may be fired without cause at any time. How does the Family Leave Act apply and how does California law apply?

It was my understanding that people with a legitimate disability could not be fired for three months if they work for a company with more than 50 employees.

--J.L., Brea

Answer: Both the California Family Rights Act and the federal Family and Medical Leave Act prohibit retaliation against an employee who takes advantage of the 12 weeks of unpaid family leave provided for in those laws. Therefore, an employer could not fire an employee because he or she took a family leave.

However, an employee on leave--for disability or any other reason--may otherwise be treated just like any other employee. Absent an unlawful motive, such as discrimination or retaliation, an employer generally may discharge any employee at any time without cause, unless there is an express or implied employment agreement that imposes restrictions on that discharge.

--Calvin House, attorney, Fulbright & Jaworski L.L.P., Adjunct professor, Western State University College of Law

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Question: I work for a government contractor. This contractor forces employees to charge the government a certain number of “uncompensated overtime” hours every year. If any employee did not meet this “quota,” the employee would receive low and delayed merit increases.

Although the employee does not get paid for these hours, the contractor still bills our government for these hours. The policy is not published, but it is carried out by all levels of management. I would like to find out if this action is legal, and if not, what can I do?

--J.C., Fountain Valley

Answer: This may or may not be illegal, depending on various factors. First, you don’t indicate whether employees actually work these overtime hours, or just charge the government for them without working them. If your company is charging the government for hours not worked, it could amount to fraud, which would result in substantial civil and criminal penalties for the company.

If the hours are actually worked, but employees are not paid for them, whether this is illegal would depend on whether the employee is “exempt” or “non-exempt” under the overtime laws, as well as the terms of your company’s contract with the government. That contract may allow your company to be compensated for overtime worked by management and other “exempt” employees, but the labor laws do not require your company to actually pay overtime to exempt employees. “Non-exempt” employees who work overtime are entitled to be paid overtime; if this is not being paid, your company may be liable for labor law violations, as well as government contract fraud.

You would be protected by the federal False Claims Act and state whistle-blower laws against discharge or discrimination in the event your employer’s conduct was fraudulent and you reported it to the government agency with which your company contracts.

--James J. McDonald Jr., Attorney, Fisher & Phillips, Labor and employment law Instructor, UC Irvine