I live in San Francisco, CA and just meet with an attorney who said I definitely have many valid claims against my former employer but he is too small of a firm to take on my case. He suggested that because my employer was a small company (10 employees) I should contact the DFEH myself to file a legal claim. He said because I took 3 medical leaves if absence in the last 5 years that my employer will argue that was enough accommodation. I do not deny taking the leaves, 2011 for 4 months for major surgery, 2012 for 3 months after I re injured my initial 2011 injury after falling in my employers supply room but she denied me to file a workers comp claim on that one and in 2013 I was out again for 5 months due to depression and anxiety.Can I ask my employer for a copy of my personnel file?
The only question you ask has an easy answer: yes, you can request to see and have copies of your employee file, as well as any documents you signed, and your payroll file information.
As to the advice you received, before you run off to the DFEH to file a claim, I would strongly suggest you seek a second and maybe even a third opinion.
The DFEH is a fine organization with a desire to help employees, but it is underfunded and overworked, and rarely is it able to prosecute a case and achieve the same kind of results that an independent attorney can and will do.
I think it is imperative that you seek out other advice. I would suggest you look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.
Most employment attorneys who practice this area of law work on a contingency basis, meaning you can hire an attorney without paying any money until the matter results in a positive outcome for you. Many advance all the costs of the litigation as well. Do not let fear of fees and costs keep you from finding a good attorney.
Good luck to you.
Yes. You may inspect your personnel file/records at reasonable times and intervals. To facilitate your inspection, your employer must do one of the following:
(1) Keep a copy of your personnel records at the place where you report to work,
(2) Make your personnel records available to you at the place where you report to work within a reasonable period time following your request to inspect such records, or
(3) Allow you to inspect your personnel records at the location where they are stored, with no loss of compensation to you.
On a separate note, you may wish to consult with another attorney before undertaking this matter on your own.
California law requires that employers allow employees and former employees access to their personnel files and records that relate to the employee’s performance or to any grievance concerning the employee. Labor Code Section 1198.5 Inspections must be allowed at reasonable times and intervals. To facilitate the inspection, employers must do one of the following: (1) keep a copy of each employee’s personnel records at the place where the employee reports to work, (2) make the personnel records available at the place where the employee reports to work within a reasonable amount of time following the employee’s request, or (3) permit the employee to inspect the records at the location where they are stored with no loss of compensation to the employee.
The right to inspect personnel files and records does not apply to records relating to the investigation of a possible criminal offense, letters of reference, or ratings, reports, or records that (a) were obtained prior to the employee’s employment, (b) were prepared by identifiable examination committee members, or (c) were obtained in connection with a promotional exam.
Employees of state agencies, with few exceptions, and public safety officers are exempt from the provisions of Labor Code Section 1198.5. Employers are required to give an employee or job applicant, upon request, a copy of any instrument that the employee or applicant has signed relating to the obtaining or holding of employment. Labor Code Section 432
Employers are required to permit current and former employees to inspect or copy payroll records pertaining to that current or former employee. Labor Code Section 226(b) An employer who receives a written or oral request from a current or former employee to inspect or copy his or her payroll records shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request. A failure by an employer to permit a current or former employee to inspect or copy his or her payroll records within the aforementioned 21 calendar day period entitles the current or former employee to recover a penalty from the employer in a civil action. Labor Code Section 226, subdivisions (c) and (f)
Employers are required to keep accurate payroll records on each employee, and such records must be made readily available for inspection by the employee upon reasonable request.
Yes, you can ask for a copy of your personnel file, every document you signed and all of your wages and hours records (CA Labor Code sections 1198.5, 432 and 226. Also, since you took a medical leave of absence, you may have been subjected to disability discrimination, wrongful termination or retaliation, all of which are unlawful. I encourage you to speak with another Plaintiffs' side wrongful termination attorney about these issues as soon as possible, because statute of limitations may run out barring you from pursuing these claims if you wait.
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