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Prepared By: Melissa C. Marsh, Los Angeles Employment Attorney
Written: March 2009

An employee personnel file should be established as soon as an employee is hired and should include such items as:

1. the employment application;
   
   
2. employee offer letter of employment, or employment agreement;
   
   
3. IRS Form W-4 (the Employee's Withholding Allowance Certificate);
   
   
4. any forms relating to benefits;
   
   
5. copy of the employee’s identification and social security card;
   
   
6. employee’s acknowledgments of receipt of the Employee Handbook, and/or any key employee policies such as an anti-harassment policy;
   
   
7. any updated personal contact information for the employee;
   
   
8. any performance reviews;
   
   
9. any disciplinary memos;
   
   
10. the employee’s attendance record; and
    
    
11. any information regarding promotions, transfers, and salary changes.

An employee personnel file should NOT contain any: (a) confidential, attorney-client privileged communications, (b) confidential medical information, including such information relating to a disability, (c) confidential information obtained during a background or reference check; (d) letters of reference; (e) USCIS Form 1-9 to verify employment eligibility; or (f) records relating to the investigation of a possible criminal offense.

California Employee's Right to Inspect.

California Labor Code §1198.5 requires employers to allow their employees, and former employees, access (at reasonable times) to their personnel files and records that relate to the employee’s performance or to any grievance concerning the employee. California Labor Code §226(b) requires employers to permit current and former employees to inspect or copy payroll records pertaining to that current or former employee within 21 days of receipt of a written request.

The employee's right to inspect personnel files and records, however, does not apply to records relating to: (1) the investigation of a possible criminal offense, (2) letters of reference, or (3) ratings, reports, or records that were obtained before the employee commenced employment or that were obtained in connection with a promotional exam.

Although a California employer is not required to provide current, or former, employees with a copy of their entire personnel file, the employer is required, upon request, to provide a current, or former, employee with a copy of any document the employee signed if the document relates to getting, or retaining, employment.

Any employer who violates, refuses, or neglects to comply with an employee’s right of inspection is guilty of a misdemeanor. Labor Code Section 1199(c).

When It Is Okay To Destroy Documents.

Employee personnel files, time cards, and expense reports should be retained for 4 years from the date the employee is no longer working for the business. Employee payroll records should be maintained for 6 years from the date the employee is no longer working for the business.

If you would like the assistance of a Los Angeles, California employment law attorney to advise your small or medium sized business on employee matters, please call: 818-849-5206 or Email Melissa C. Marsh, a Los Angeles, California employment lawyer based in Sherman Oaks and West Hollywood. We are available to serve small to midsize businesses throughout Los Angeles County, including: West Hollywood, Beverly Hills, Miracle Mile, Burbank, North Hollywood, Valley Village, Toluca Lake, Studio City, Sherman Oaks, Van Nuys, Encino, and Woodland Hills.

© 2009 Melissa C. Marsh. All Rights Reserved.

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