Seyfarth Synopsis: Plaintiffs' lawyers routinely invoke Labor Code provisions to conduct pre-litigation discovery by seeking employment records. For employers that scramble to comply with these often burdensome demands, we offer some practical tips on how to utilize the protections the law provides for employers and for the (perhaps) unsuspecting employees on whose purported behalf the request is made.
Have you received a lawyer's letter containing a seemingly endless list of employment records demanded on behalf of a current or former employee? If so, count yourself in the majority. It is now commonplace for plaintiffs' attorneys to bombard employers with demands for employment records before they launch a legal action against the company. The letter may also list a long series of alleged statutory violations, in search of a quick settlement and a big pay day.
This blog highlights some protections that employers have and shares some creative ways to respond the next time you receive a pre-litigation document demand.
A Quick Recap of the Law
Labor Code §§ 1198.5 and 226 are the two statutes most commonly used to seek employment records. Section 1198.5 entitles an employee, former employee, or her representative (usually an attorney) to inspect or receive a copy of personnel records relating to the employee's performance or any grievance concerning the employee. The DLSE's non-exhaustive list of examples of covered documents includes these items: applications for employment, performance reviews, commendations, warnings, disciplinary actions, and complaints about the employee.
Section 226 entitles an employee or an employee's representative to seek the employee's wage statement records. Employers responding to a Section 226 request may provide "a computer-generated record" in lieu of actual wage statement copies, provided that record contains all nine specified items of information, such as all hourly rates, hours worked, gross wages earned, etc. And, as of January 1, 2019, employers must provide the employee a copy of the wage statements or computer-generated record upon request, rather than just providing an opportunity for an "inspection."
Employer must provide responsive documents within certain time limits—personnel records within 30 days and wage statement records within 21 days. A failure to timely respond to these requests could lead to penalties, civil litigation, and, in some cases, criminal liabilities.
We've previously written an in-depth analysis of these provisions and how to comply with record requests under them.
Is There Anything I Can Do Before Producing the Records?
Before blindly complying with requests and producing all the responsive documents, employers should consider verifying the identity of the person seeking the records and whether the individual is truly entitled to obtain them. Sections 1198.5 and 226 both expressly permit a company to take "reasonable steps" to verify the identity of the employee or the representative seeking the employment records. Under Section 1198.5(e), the employer "may take reasonable steps to verify the identity of a current or former employee or his or her authorized representative." Under Section 226(b), the employer "may take reasonable steps to ensure the identity of a current or former employee."
Why Should I Seek Verification Before Producing the Records?
There are several reasons to implement a verification process:
- Employment records often contain sensitive and private information, such as social security numbers, financial data, and contact information. With the burgeoning threat of identity theft, employers should be mindful about producing sensitive employment records to strangers who claim to be the employee or the employee's representative.
- Employment record requests often put companies in a time crunch to compile and respond. By seeking verification, the company develops a basis for an argument that it should have more time to gather the requested information and complete its review of responsive documents.
- The verification process helps ensure there is an existing relationship between the attorney and the current or former employee and that the employee has authorized the attorney to get the records on her behalf.
- The verification process forces the attorney making the demand to re-engage with the client. In some cases, the employee may develop a change of heart and no longer wish to sue the company. When that happens, the attorney who claims to represent the employee cannot complete the verification request, and the company may never hear back from the attorney (or the employee) again.
So the next time you receive a letter from an employment lawyer, consider taking a moment to consider the best approach for your response. Because each request should be examined and evaluated on a case-by-case basis, please make sure you seek proper legal advice from a qualified employment lawyer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.