In a wage case, the employee's performance level is typically not an issue. Nonetheless, many employers seek to discredit an employee in an overtime, minimum wage, prevailing wage or other wage case by introducing evidence that the employee was a poor performer. For this reason, we generally like to have employees review their personnel files to see what complaints, if any, the employer found significant enough to record in a personnel file. If there are none, we might not even object to questions about performance, because we follow up with an interrogation of the manager to inquire why the "horrible" employee's personnel file was clean, and his or her reputation was never sullied by the employer until they had the audacity to demand their pay.
California Labor Code § 1198.5 guarantees all California employees the right to inspect their personnel files and records about their performance or any grievances. Employers must do one of the following to facilitate reasonable times and intervals for the employees to inspect their personnel files:
- Keep a copy of each employee’s personnel records at the place where the employee reports to work;
- Make the personnel records available at the place where the employee reports to work within a reasonable amount of time; or
- Allow the employee to inspect the records at the location where they are stored with no loss of compensation to the employee.
In general, “reasonable times” will be considered to be during regular business hours of the office or at anytime during an employee's regularly scheduled work shift. Sufficient time should be afforded an employee to make a thorough inspection. In general, “reasonable intervals” are a minimum of once every year, but can be more frequent if there is cause to believe that the file has been altered or contains information that is pertinent to an ongoing investigation affecting the employee.
Exceptions to the inspection rule include: records about the investigation of a possible criminal offense; letters of reference; or records that were obtained before the employee’s employment, prepared by identifiable examination committee members, or obtained in connection with a promotional exam. The right generally does not inure to the benefit of employees of state agencies or public safety officers, but some public employees are covered, including employees of a city, county, special district, community redevelopment agency, or other political subdivision of the state.