WORKPLACE LAW - Perturbed About Performance Evaluation In Salinas

Question:

I have worked for a large business in the area for several years. Recently, I had my annual performance evaluation. In the past, my evaluations have been above average or excellent. This year I was evaluated as being barely average. In my opinion, my work performance has stayed the same or increased in some areas, but definitely has not decreased. I asked my supervisor, who is fairly new to the company, for copies of my past performance evaluations because I wanted to compare them with my current evaluation. My supervisor gave me a hard time. At first, she said that I could not have copies of them. Then she said I could have copies of them, but that I would have to use my own time to drive over to the office where the personnel files are kept and use my own time to review my personnel file to obtain my past performance evaluations. What are the rules regarding an employee inspecting their own personnel file?

Answer:

Pursuant to California Labor Code section 1198.5, you are entitled to inspect your personnel file at reasonable times and intervals. Reasonable times and intervals generally means during business hours of the office where personnel files are usually maintained or anytime during the employee’s regularly scheduled work shift. Sufficient time must be allowed to permit the employee an ample opportunity to conduct a thorough inspection once a year. However, you are not entitled to everything in your personnel file.

You are not entitled to the following information:

  • Records relating to the investigation of a possible criminal offense;
  • Letters of reference; and
  • Ratings, reports, or records that were obtained prior to your employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination.

Some of the types of records in your personnel file that you are entitled to see are as follows:

  • Application for employment;
  • Payroll authorization form;
  • Notices of commendation, warning, discipline, and/or termination;
  • Notices of layoff, leave of absence, and vacation;
  • Notices of wage attachment or garnishment;
  • Education and training notices and records;
  • Any document you signed relating to obtaining or holding your employment;
  • Performance appraisals/reviews; and
  • Attendance records.

Your employer can generally require you to inspect your personnel file on your own time. However, if, as in your case, the file is not kept at the place where you report to work and you are required to travel to the office where all the personnel files are maintained, your inspection of the file must be done during your normal working hours and you must be compensated for that time at your regular rate of pay.

In addition, pursuant to California Labor Code section 226(b), employers are required to maintain accurate payroll records on each employee and employers are required to permit current and former employees to inspect or copy payroll records pertaining to that particular employee. Employers are required to comply with a request for payroll records no later than 21 calendar days from the date of the request. Pursuant to California Labor Code section 6408(d), employers must provide employees, or their representatives, access to accurate records of employee exposure to potentially toxic materials or harmful physical agents.

For further information regarding personnel files and records, please visit the Department of Labor Standards Enforcement website at http://www.dir.ca.gov/dlse/DLSE-FAQs.htm.
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WORKPLACE LAW - Supporting Mom and Dad in Salinas

Question:

My father has Alzheimer’s disease and he was a victim of a violent robbery. The case is about to go to trial and my mother will be there to care for and support him. However, my mother needs my assistance. I have asked for time off work to attend the trial with my mom, and my employer told me that I can only take my accrued vacation as time off to attend the trial. Can my employer limit my time off in this fashion? I do not think I have enough accrued vacation to attend the trial every day. Also, while I do not mind using some of my accrued vacation to cover the time off, I do not want to use all of my vacation for this purpose as I already have a trip planned later this year.

Answer:

As of January 1, 2004, employers in California must provide employees who are related to a victim of certain crimes unlimited time off to attend judicial proceedings related to that crime.

The Crime Victims Leave law, SB 478, was signed by Governor Davis on September 30, 2003. This law provides leave to victims of violent felonies, serious felonies, and felonies relating to theft or embezzlement, and it applies to all employers, regardless of size. SB 478 allows an employee who is a victim of a covered crime, or the immediate family member of a victim, to take time off work in order to attend the judicial proceedings related to that particular crime. For purposes of this law, an immediate family member is a spouse, registered domestic partner, child, stepchild, brother, stepbrother, sister, stepsister, mother, stepmother, father, or stepfather, and child of a registered domestic partner.

Before an employee can be absent from work to attend judicial proceedings, the employee must provide their employer with a copy of the notice of each scheduled judicial proceeding, unless providing advance notice is not feasible. If an unscheduled absence occurs, or advance notice is not provided or feasible, the employee must provide documentation evidencing the judicial proceeding from one of the following:

  • The court or government agency that set the hearing
  • The district attorney or prosecuting attorney’s office
  • The victim/witness’ office that is advocating on behalf of the victim

The employee can elect to use paid or unpaid leave for Crime Victims Leave. The employer must keep any records regarding the use of Crime Victims Leave confidential. Also, the employer may not terminate or discriminate against the person taking Crime Victims Leave.

It appears that your employer may be unaware of this new law. Because your father was the victim of a violent felony, you are probably eligible for Crime Victims Leave for the duration of the trial. I suggest that you present your employer with appropriate documentation regarding your need to attend this judicial proceeding, together with information regarding this new law, and renew your request for time off to attend the trial.
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WORKPLACE LAW - At-Will and Apprehensive in Aptos

Question:

I have an at-will agreement with my employer. I understand that this agreement means that I can generally be terminated with or without notice and with or without cause. I also understand that even with this agreement, I cannot be terminated for any illegal reason. I have been told that illegal reasons include reasons that violate the anti-discrimination laws or public policy. What would constitute a violation of public policy when it comes to terminating an at-will employee?

Answer:

There are a number of California judicial decisions that discuss the public policy limitations on an employer's ability to terminate an at-will employee. Many of these cases discuss the issue of what is and what is not a public policy. In the California Supreme Court case of Turner v. Anheuser Busch, Inc., the Court held that in order to state a public policy claim, the policy at issue must be '"(1) fundamental, (2) beneficial for the public [rather than simply to the individual employer/employee], and (3) embodied in a statute or constitutional provision." A later Supreme Court case clarified this ruling, holding that a claim for wrongful termination in violation of public policy may also be based on regulations issued by administrative agencies. An example of this might be regulations issued by the Department of Fair Employment and Housing or Department of Labor Standards Enforcement. One important restriction on a public policy claim is that a violation of an employer's own internal regulations, even if generally of benefit to the public, is insufficient to state such a claim.

The following are some examples of situations where courts have found a violation of public policy.

  • Employee of a defense contractor terminated after complaining to supervisors that workers with inadequate security clearances had access to restricted military documents.
  • Employee terminated for filing bankruptcy.
  • Employee terminated for filing a Cal/OSHA complaint.
  • Employee terminated for refusing to drive an unsafe vehicle.
  • Employee terminated for refusing to sign an unenforceable covenant not to compete.
  • Employee terminated for disclosing the amount of his/her wages.
  • Employee terminated for complaining that co-workers were being sexually harassed and discriminated against.
  • Employee terminated for complaining about illegal pay practices.
  • Employee terminated for refusing to violate anti-trust laws.
  • Employee terminated for refusing to work with co-workers who do not have proper licensing.
  • Employee terminated for advocating a smoke free environment.
  • Employee terminated on account of a single wage garnishment.
  • Employee terminated for exercising rights under the pregnancy discrimination laws.
  • Employee terminated for disclosing the need to participate in an alcohol/drug rehabilitation program.

As this list illustrates, the circumstances that would constitute a violation of public policy are varied and quite fact specific. Given the broad range of complex laws that impact the employment relationship, there are countless bases for a wrongful termination in violation of public policy claim.
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