Seyfarth Synopsis: Plaintiffs’ attorneys frequently invoke Labor Code provisions to conduct pre-litigation discovery by requesting employment records. For employers who struggle to comply with these often burdensome demands, we have some practical tips on how to utilize the protections the law provides for both employers and the employees on whose behalf the request is made.
When Lawyers Demand Employment Records
Have you ever received a lawyer’s letter demanding an extensive list of employment records on behalf of a current or former employee? If you have, you’re not alone. It has become commonplace for plaintiffs’ attorneys to bombard employers with demands for employment records before initiating legal action against the company. These letters often include numerous alleged statutory violations, in hopes of securing a quick settlement and a substantial payout.
Understanding the Law
Labor Code §§ 1198.5 and 226 are the two statutes most commonly used to request employment records. Section 1198.5 gives employees, former employees, or their representatives (usually attorneys) the right to inspect or receive copies of personnel records relating to performance or grievances. The DLSE’s list of covered documents includes applications for employment, performance reviews, commendations, warnings, disciplinary actions, and employee complaints.
Section 226 allows employees or their representatives to request wage statement records. Employers can provide a “computer-generated record” instead of physical copies, as long as this record contains all the specified information, such as hourly rates, hours worked, and gross wages earned. Since January 1, 2019, employers must provide employees with copies of wage statements or computer-generated records upon request, rather than only allowing inspection.
Employers must respond to these requests within specific time limits — 30 days for personnel records and 21 days for wage statement records. Failure to comply with these requests can result in penalties, civil litigation, and, in severe cases, criminal liabilities.
Protecting Your Company
Instead of blindly complying with requests and providing all responsive documents, employers should consider taking steps to verify the identity of the person making the request and ensure their entitlement to the records. Both Section 1198.5 and Section 226 explicitly allow companies to take “reasonable steps” to verify the identity of employees or their representatives seeking employment records.
There are several reasons to implement a verification process:
- Employment records often contain sensitive information, such as social security numbers, financial data, and contact information. Given the increasing risk of identity theft, employers should exercise caution when providing sensitive employment records to individuals claiming to be the employee or their representative.
- Requests for employment records often impose time constraints on companies, requiring them to quickly compile and respond. By seeking verification, companies can argue that they need more time to gather the requested information and review the documents.
- The verification process ensures the existence of a relationship between the attorney and the current or former employee, and that the employee has authorized the attorney to request the records on their behalf.
- The verification process prompts the attorney to communicate with the client. In some cases, the employee may have a change of heart and decide not to sue the company. In such situations, if the attorney is unable to complete the verification request, the company may never hear from them or the employee again.
The next time you receive a letter from an employment lawyer requesting records, take a moment to consider the best approach for your response. Since each request should be evaluated on a case-by-case basis, it’s crucial to seek advice from a qualified employment lawyer to ensure proper handling.
For more information and expert advice, visit Garrity Traina.