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  1. #1

    Default Use of an Employee Personnel File for a Worker's Comp Claim

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

    Does the employer decide what documents they want to send?

    I compared my personnel file that workers comp carrier sent and my personnel file and they are very different. The file I requested from the employer doesn’t have much information. There’s just the notice to change relationship that says I’ve been discharged from my position.
    There nothing about why I was terminated. There was a page saying I agree and was a handbook but it was just a few pages about computer use, dress code and employment agreements. There is no training material.
    The file from workers compensation includes dates of misconduct. There was a page with different page numbering that can be argued regarding the failure to follow procedure.
    Why are they different? I was terminated and never had a chance to pick up my personal belongings which included my original handbook.
    They left out promotions, internal applications, awards and certificates. There were no training, orientation, disciplinary actions.
    It seems like 8-9 years of work just vanished.

  2. #2
    Join Date
    Oct 2014
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    7,146

    Default Re: Employee Personnel File

    I assume the company provided a copy of the file directly to you upon your request. When did you make the request and why? What exactly did you ask for? When did worker's comp get the information from the employer — about the same time that the company provided it to you, earlier, or later?

    Note that what a company defines as it's "personnel records" might be something substantially less than the entire set of records it has about the employee in the company. Also, most states have few or no laws that regulate minimum records that must be in an employees personnel record or that provide you much in the way of rights to access to that information.

    Is there a reason why the scant information in the copy of the file you received matters?

  3. #3
    Join Date
    Aug 2013
    Posts
    278

    Default Re: Employee Personnel File

    https://www.dir.ca.gov/dlse/AccessTO...nelRecords.pdf

    I included CA-DLSE's fact sheet on required information to be provided. Not the law per se but rather the enforcement agency's interpretation of the law. Start there. Smart employers do exactly what the law requires. No more. No less. At my last employer our labor law firm gave a list (by state) of exactly what documents were required and HR followed the list to the letter. We had a 35 person HR department and you needed those type of instructions to get a consistent result.

    I am not a WC expert and have no idea what paper they would have given you and what would be on it.

    Past that, CA like most states is employment at will and employers technically do not need a reason to terminate someone. The problem with a "no reason" terminations is that the employee can claim a "for reason" termination and the employer will find it legally difficult to reverse their position. The court will not necessarily believe the employee's reason, but the employer just weakened their side of any court or administrative action. Most smart employers avoid "no reason" terminations. I have worked for firms where if I wanted to terminate someone, HR not only wanted cause but they wanted to find plenty of supporting paper in THEIR files showing that I repeatedly brought the problem to the employee's attention, tried to consul the employee, and the attempts failed. The court did not necessarily believe our version but it much easier if the employer actually has a version. The obvious exception was when the transgression was huge. We had an employee arrested for stealing 100 pounds or so of coffee from us, got the whole thing on film and got sued for wrongful termination even though we got a conviction on the theft. Fun times.

    Not all employers are smart. Some are lazy.

  4. #4
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    23,852

    Default Re: Employee Personnel File

    Records and documents that an employee considers will be in their employee file often are not. Additionally, in this day of electronics file there may not be one single "employee file" that includes everything. Different records may be held in different areas. I can tell you for certain that no matter what state you're in, any records that are medically related are held separately. This would include any workers comp records.

  5. #5
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    Oct 2014
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    7,146

    Default Re: Employee Personnel File

    Quote Quoting cbg
    View Post
    Records and documents that an employee considers will be in their employee file often are not. Additionally, in this day of electronics file there may not be one single "employee file" that includes everything. Different records may be held in different areas.
    That's why I asked exactly what the OP told the employer he/she wanted. If the request was just for the "personnel file" there might not be much there — but the employer may have had records related to the employee in other places in the company.

  6. #6
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    23,852

    Default Re: Employee Personnel File

    Exactly. We get asked for "personnel files" all the time, but the only records we have are related to benefits. If you want the form designating your life insurance beneficiary or that cancelled your dental insurance we can help you, but if you want disciplinary records or termination notices we don't have access to that. We'll give you what we have, but if you don't tell us what you want we don't necessarily know which office to refer you to.

  7. #7
    Join Date
    Nov 2009
    Posts
    791

    Default Re: Employee Personnel File

    I can offer some observations taken from the state law, but have no experience beyond that.

    Quote Quoting Fallguy
    View Post
    Does the employer decide what documents they want to send?
    Based on the exact wording of Labor Code § 1198.5(a) (bolding added):

    Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee.

    The term “personnel records” appears 21 times in the section.

    Quote Quoting Fallguy
    View Post
    The file from workers compensation includes dates of misconduct. There was a page with different page numbering that can be argued regarding the failure to follow procedure.
    Since dates of misconduct are definitely “relating to the employee’s performance” and these dates are present in the workers compensation file, it would appear that the employer has failed to provide some of the required information assuming they received a written and properly worded request from the former employee at least 30 days ago.

    According to § 1198.5(k):

    If an employer fails to permit a current or former employee, or his or her representative, to inspect or copy personnel records within the times specified in this section, or times agreed to by mutual agreement as provided in this section, the current or former employee or the Labor Commissioner may recover a penalty of seven hundred fifty dollars ($750) from the employer.

  8. #8
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    23,852

    Default Re: Employee Personnel File

    But what we do not know is whether or not the OP requested specifically the personnel record related to performance. I also have serious questions as to how a 'file from workers compensation" would include anything unrelated to the claim itself, including dates of misconduct, unless that information came from the employer. The workers compensation carrier has nothing to do with performance or misconduct records.

    Having seen several threads from this OP on more than one forum and a rather extensive correspondence over PM, I think it is safe to say that this OP has a very incorrect idea as to how employment records are kept or what the law actually requires.

    And searcher99, the same applies to you.

  9. #9

    Default Re: Employee Personnel File

    Quote Quoting Taxing Matters
    View Post
    I assume the company provided a copy of the file directly to you upon your request. When did you make the request and why? What exactly did you ask for? When did worker's comp get the information from the employer — about the same time that the company provided it to you, earlier, or later?

    Note that what a company defines as it's "personnel records" might be something substantially less than the entire set of records it has about the employee in the company. Also, most states have few or no laws that regulate minimum records that must be in an employees personnel record or that provide you much in the way of rights to access to that information.

    Is there a reason why the scant information in the copy of the file you received matters?
    Quote Quoting Taxing Matters
    View Post
    I assume the company provided a copy of the file directly to you upon your request. When did you make the request and why? What exactly did you ask for? When did worker's comp get the information from the employer — about the same time that the company provided it to you, earlier, or later?

    Note that what a company defines as it's "personnel records" might be something substantially less than the entire set of records it has about the employee in the company. Also, most states have few or no laws that regulate minimum records that must be in an employees personnel record or that provide you much in the way of rights to access to that information.

    Is there a reason why the scant information in the copy of the file you received matters?
    I was terminated over a year ago after I was injured on the job. I’ve been trying to appeal my workers comp claim since then. Recently, the insurance carrier dismiss their attorney and hired a new one.

    Their new attorney sent me all my files in their possession and I saw my personnel file in the packet. There were many things in there that didnt add up so I requested for my personnel file directly with the employer.

    The one I requested only has my application, w-2, etc. the basic information when u apply for work. There was a few pages about dress codes, computer and cell phones usage and employment agreements. There was the pages from the handbook that doesn’t have the page that the employer said I didnt follow. Lastly, the discharge and final paycheck.

    I’m sure they have certain information that they don’t have to provide but I wanted to know more about the documents that should be in there. I’ve had several promotions, numerous awards and achievements, I’ve trained classes for managers in other regions. I’ve applied for several internal jobs and done interviews with the ceo.

    I feel like everything I worked for was erased. How would anyone know I’ve had any experience in the 8-9 years I worked there if it was erased. This leaves them room to put whatever they feel is beneficial to them in case they ever need to prove wrongdoing.

    For example: they can submit seperation letters to workers comp or edd that gives explanations of why and when I was terminated.

    How would any attorney defend the employee? Especially one that’s been there for 8-9 years and never misses work and always on time. Always in the top 10% in performance. All with zero training from upper management.

    Quote Quoting DAWW
    View Post
    https://www.dir.ca.gov/dlse/AccessTO...nelRecords.pdf

    I included CA-DLSE's fact sheet on required information to be provided. Not the law per se but rather the enforcement agency's interpretation of the law. Start there. Smart employers do exactly what the law requires. No more. No less. At my last employer our labor law firm gave a list (by state) of exactly what documents were required and HR followed the list to the letter. We had a 35 person HR department and you needed those type of instructions to get a consistent result.

    I am not a WC expert and have no idea what paper they would have given you and what would be on it.

    Past that, CA like most states is employment at will and employers technically do not need a reason to terminate someone. The problem with a "no reason" terminations is that the employee can claim a "for reason" termination and the employer will find it legally difficult to reverse their position. The court will not necessarily believe the employee's reason, but the employer just weakened their side of any court or administrative action. Most smart employers avoid "no reason" terminations. I have worked for firms where if I wanted to terminate someone, HR not only wanted cause but they wanted to find plenty of supporting paper in THEIR files showing that I repeatedly brought the problem to the employee's attention, tried to consul the employee, and the attempts failed. The court did not necessarily believe our version but it much easier if the employer actually has a version. The obvious exception was when the transgression was huge. We had an employee arrested for stealing 100 pounds or so of coffee from us, got the whole thing on film and got sued for wrongful termination even though we got a conviction on the theft. Fun times.

    Not all employers are smart. Some are lazy.
    That at-will thing just doesn’t seem right or make much sense. It just seems like an excuse because the employer will get to write their own version that benefits them.

    I was only given a discharged paper. It was literally 1 sentence. I was one the phone for about an hour going over the employee handbook. They wanted me to memorize a handbook that was from 3-4 ago. Not to mention that it was done on a conference call on the clock while doing my regular duty.

    By the time the employee realize what happened. The statue of limitations has expired. Most of the laws are only 6 months and a year if you know what laws are which.

    Quote Quoting Taxing Matters
    View Post
    That's why I asked exactly what the OP told the employer he/she wanted. If the request was just for the "personnel file" there might not be much there — but the employer may have had records related to the employee in other places in the company.
    I’m sure the employer doesn’t have medical records. I’m saying that what they sent to the carrier has additional information as to why I was terminated.

    This is important because it makes a big difference in workers compensation because it’s a matter of benefits paid.

    If the employee has no rights or access to this information, that leaves a big window of opportunity for the employer to commit fraud.

    Quote Quoting cbg
    View Post
    Exactly. We get asked for "personnel files" all the time, but the only records we have are related to benefits. If you want the form designating your life insurance beneficiary or that cancelled your dental insurance we can help you, but if you want disciplinary records or termination notices we don't have access to that. We'll give you what we have, but if you don't tell us what you want we don't necessarily know which office to refer you to.
    The reason I’m asking is because I don’t know what I can legally request for. If there is nothing concrete about what they employer needs to show then they have a huge advantage if they choose to screw someone over.

    Quote Quoting searcher99
    View Post
    I can offer some observations taken from the state law, but have no experience beyond that.


    Based on the exact wording of Labor Code § 1198.5(a) (bolding added):

    Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee.

    The term “personnel records” appears 21 times in the section.



    Since dates of misconduct are definitely “relating to the employee’s performance” and these dates are present in the workers compensation file, it would appear that the employer has failed to provide some of the required information assuming they received a written and properly worded request from the former employee at least 30 days ago.

    According to § 1198.5(k):
    How do I legally request for my file.
    If an employer fails to permit a current or former employee, or his or her representative, to inspect or copy personnel records within the times specified in this section, or times agreed to by mutual agreement as provided in this section, the current or former employee or the Labor Commissioner may recover a penalty of seven hundred fifty dollars ($750) from the employer.
    How can I legally request for my file? I sent an email to HR asking for my personnel file and all I got was a very basic file.

  10. #10
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    23,852

    Default Re: Employee Personnel File

    There is nothing illegal about asking for anything you want. Are you asking what you can ask for that they are legally required to provide?

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