Terminated Employee Has Right to See Personnel File : Q

Q I was laid off from a company. Is there a way to check my personnel file even if I don’t work there anymore?

--R.S., Irvine

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A According to the labor code, an employer must allow an employee to inspect his or her personnel file when it has been used to “determine that employee’s qualifications for employment, promotion, additional compensation, termination or other disciplinary action.�

The employer can impose reasonable limitations, such as allowing inspection only during business hours, only on the employee’s own time, by appointment or only on recent notice. An employer can also allow a company executive to monitor the inspection and may limit the frequency of inspections. An employee generally has a right to obtain copies of any documents signed by the employee.

The California labor commissioner takes the position that terminated employees have a right to inspect the personnel file until the statute of limitations for any claim has expired. Most statutes of limitations last at least two years from the date of termination, three or four years in certain cases.

You might consider stopping by your previous employer’s office unannounced to ask to look at your file. If the company lets you see it in this manner, its staff will not have a chance to “sanitize� it by deleting documents detrimental to the company.

Or you might write them a letter to document your request. If the company refuses or delays access, remind the people there that you are entitled to it by law. In fact, willful refusal to give you access could constitute a crime.

--Don D. Sessions

Employee rights attorney

Universal City

65-Year-Old Needn’t Retire

Q My father, who is 65 and has been with his employer for 11 years, recently was notified by mail that he was being added to the company’s “retirement rolls.� Late last year, he had verbally expressed to his supervisor a desire to retire when he and my mother sold their house. It was not a formal request.

Last December, he became very ill and has been on disability since then. The company has supplemented his disability payments to keep him at full pay. Just two months ago, he was promised verbally by a company vice president (his immediate supervisor) that he would have a job as long as he wanted.

My father does not want to retire. I do not believe the company can force him to retire, and they do not have grounds to terminate him. They have compounded this by replacing him with a significantly younger man. Does my father have grounds for a wrongful termination and/or age discrimination suit? The company is privately held and there is no collective-bargaining agreement involved.

--M.B., Santa Clarita

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A Both federal and state age discrimination laws prohibit employers from compelling most employees to retire at any age. Therefore, even if your father previously had stated his intention to retire upon the occurrence of certain events, he could not be compelled to do so when he reached age 65.

In your father’s case, however, it appears that he has been prevented from working for at least five months because of a disability. Most employers have policies that limit the amount of medical leave employees may take. The policies generally call for termination of employees who exceed that maximum. For certain employees who qualify for medical leave, that maximum must be at least 12 weeks in any one-year period.

If your father was terminated because he has exceeded his maximum medical leave under his employer’s policy, the employer has not discriminated against him. If he has not exceeded the maximum leave under the employer’s policy, he may have a valid age discrimination or wrongful termination claim.

Even if your father has been terminated legally, he cannot be compelled to begin accepting retirement benefits if he still wishes to be actively employed by someone and to defer his retirement.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

‘Use It or Lose It’ May Not Be Legal

Q My employer had a policy of paying off all unused vacation at the current rate after the anniversary date had elapsed. Now my employer has seemingly adopted a “use it or lose it� policy. The new system allows an employee to save or “bank� four days a year to a maximum of 50 days.

My concern is that any vacation days lost beyond this maximum will not be paid, even after retirement or termination.

--R.P., Anaheim

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A A vacation policy with a “use it or lose it� provision that requires employees to forfeit accrued vacation or vacation pay will not be recognized by the state labor commissioner.

It is permissible for your company to allow employees to carry over four unused vacation days and set a limit of 50 days that can be accrued. If you have unused vacation beyond the four days at the end of each year, however, the excess unused vacation must either be used or cashed out. It cannot be forfeited.

I recommend that you simply take the vacation time before you reach the 50-day maximum, which should eliminate your concerns.

Many employers have developed policies that place a cap on vacations once employees have built up a certain level of vacation time. Under this system, the employee does not receive credit for additional vacation time until he or she takes a vacation. The time periods for taking vacation must be reasonable, however.

--Elizabeth Winfree-Lydon

Senior staff consultant

Employers Group

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The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.