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  1. #1
    Join Date
    Feb 2013
    Posts
    15

    Default When Can You Avoid Giving Employment Records to a Past Employee

    My question involves labor and employment law for the state of: CA

    I received a letter from an attorney representing an employee who was terminated. Letter contained standard language, states their position, and wants copies of the employee's personnel file. The next paragraph indicates they would be willing to discuss the matter "before expensive litigation becomes necessary." I'm skeered now However,

    • There were no signed disclosures by the ex-employee showing he had retained this guy as counsel.

    • In fact, there was nothing else in the envelope except the lawyer letter.

    I could be wrong, but I don't see any requirement to comply with anything here. I'm not opposed to sending a response to the ex-employee and the lawyer indicating our willingness to comply when we receive a proper request or they can request to come here to view the records. We actually do not have anything to hide, and we'll cooperate, no problem.

    If/when we do get a proper request to produce records, copies as required by CA Labor Code section 1198.5 we will. However, after reading AB 2674, there appears to be some exceptions to 1198.5, notably:

    "The rule doesn’t apply if the parties are involved in employment-related litigation."

    Shortly after termination, ex-employee filed a Worker's Comp case (with an actual WCAB case # and real attorney.) Our insurer is working through this at the very early stages. Does this pass the "litigation" test for AB 2674 excepting us from producing records for the shake-down lawyer? At least for the moment.

    Last question: Are the records of our communications with the EDD re:unemployment compensation, a required part of the personnel file which must be disclosed? We prevailed on the denial of benefits under 1256, and the claimant's appeal period has tolled.

    Thanks in advance to any replies.

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: When Can You Avoid Giving Employment Records to a Past Employee

    What you will want to do is to contact your insurance company, tell them that you have a potential employment-related claim relating to an ex-employee, and provide them with the correspondence. They will worry about contacting the lawyer and figuring out whether he's authorized to make the request, and advise you about what you need to provide (through them).

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