Ex-Employees Also Have Right to See Personnel Files

Q: An employee has a right to view his personnel file. But I have a previous employer who is constantly giving me what I think is an unjustified bad reference. What right, if any, does a former employee have to look at his personnel file that is still maintained by his former employer?

--A.T., Corona del Mar

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A: The California labor commissioner, who interprets California labor laws in regard to personnel files, takes the position that the law that allows employees to review their personnel files also applies to former employees. Therefore, you have a right to review your file maintained by your prior employer upon reasonable notice.

You also have a right to secure copies of any documents in it that you signed to obtain or retain employment. These would be such documents as signed applications for employment, signed performance evaluations and signed memoranda of criticism or discipline.

In addition, if your former employer has intentionally provided misinformation about you to a prospective employer, and you have been deprived of an employment opportunity as a result, you may have a claim against your former employer for triple the damages that you have suffered. You should consult legal counsel to explore your rights.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Harder Work Isn’t Goal of Self-Directed Work Teams

Q: My company is implementing self-directed work teams.” Many of my co-workers view this as just a way for the company to get us to do more work. Is this true?

--C.O., Newport Beach

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A: Self-directed work teams are intended to allow workers to have more control over their jobs and the work environment. The goals of self-directed teams are to improve work quality and efficiency and to encourage workers to get more involved in the planning and execution of the tasks they perform. While an ultimate goal of such team approaches may be to increase productivity, it is not necessarily the case that workers are required to do more work under self-directed teams. If implemented correctly, self-managed work teams raise the level of tasks associated with jobs. Workers should be working “smarter” but not necessarily “harder.”

--Ron Riggio

Professor of psychology

Cal State Fullerton

Worker Privacy Can’t Be Invaded Unreasonably

Q: A friend of mine was recently hired by a company that is not based in the United States. One of the items on the employment agreement says that while employed by the company, you will not, except with the written consent of the company, devote any of your time to any other business or profession.

I can understand where they would not want you to be in a competing business, but if you have some other part-time venture that does not infringe on the company’s interests, how could that item be enforceable?

--V.C., Mission Viejo

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A: A company cannot unreasonably invade the privacy of its employees. Companies not based in the United States also must comply with U.S. law in this regard.

The courts have held that companies can prohibit employees from engaging in outside employment that is in competition with its own business. If the outside employment is not in competition with your company’s business, then there must be some other legitimate reason for the restriction for it to be legally enforceable. If an employee is a part-time employee, it would be very difficult to justify any restriction on outside non-competitive employment.

The key is whether the outside employment unreasonably affects the work performance or other relevant factors within the company. Some of the factors that would have to be evaluated on a case-by-case basis include the following: effect on employee absenteeism, harm to the company’s reputation (especially if the outside employment is disreputable or illegal) and the extent to which other employees fear or refuse to work with the employee because of outside employment or activities.

Unfortunately, employers sometimes put provisions in employment agreements or employee handbooks that have the legal effect of an unenforceable suggestion. You may have a legal claim against your employer if you are fired or suffer retaliation because of your refusal to submit to unreasonable intrusions into your private life.

On the other hand, rather than complaining about an unjust policy and possibly suffering retaliation or fighting a battle over the problem, you might be better off simply keeping your outside employment quiet and dealing with the improper policy only if the employer discovers your violation of it.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Vacation Policy Found in Employee Handbook

Q: I’ve worked for a car dealer for 10 years. I asked my boss if I qualified for three weeks of vacation. He said I did and I took one week of vacation. When I got my paycheck, I had not been paid for that week. My boss said the owner told him I could have paid vacation after 11 years. What can I do?

--L.B., Laguna Hills

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A: The answer depends on your position and how you are paid. If you are a manager or other employee who is paid based upon the monthly sales performance of your department, and you received your normal pay for the pay period during which you were on vacation, you are not entitled to additional pay for being on vacation.

If you are paid by the hour or on some other basis not tied to the performance of a particular department, and you received no pay whatsoever covering the period you were on vacation, you may be entitled to receive such pay, based upon your boss’s oral statement to you. You should check your employee handbook or manual for any discussion of vacation policy, however, because a properly written handbook will supersede any oral representations made by your boss.

If you still think you are entitled to vacation pay, you should try to work it out with your boss and the owner. If you are unsuccessful, you can seek the assistance of the labor commissioner.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

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