Wrongful Termination Evidence in Your Personnel File

An employee’s personnel file contains some of the most valuable information to a claim for discrimination, retaliation, harassment and wrongful termination. One of the powerful ways in which the personnel file can be used is when the employer argues that the worker was terminated for poor performance. If that worker’s personnel file contains good performance reviews, or even excellence awards and documentation of paid out bonuses, in addition to lack of warnings, bad reviews and disciplinary action, this will cast heavy doubt on the employer’s truthfulness and the true reasons for employee’s termination.

Often, however, when a personnel file is requested as permitted under California Labor Code 1998.5 and other provisions, the employer “interprets” that request very narrowly, providing minimum documentation, and claiming that all the other documents, such as performance reviews and investigation reports, are located in other files and therefore are not available. Some companies and especially their counsel will argue that the employee is only entitled to having that paperwork from his personnel file, which that employee has signed.

Both of the above arguments have no merit. In Wellpoint Health Networks, Inc., v. Superior Court 59 Cal.App.4th 110 (1997), the court specifically discussed the issue of obtaining personnel files. The court held that as California Labor Code section 1198.5(a) provides, every employer shall… at the request of employee, permit that employee to inspect such personnel files which are used or have been used to determine that employee’s qualifications for employment, promotion, additional compensation, or termination or other disciplinary action. The court further noted that these documents include, among others investigative reports of EEOC, pointing out that the above provision intends a broad definition of “personnel file” to preclude employers from assigning documents to files having some other name, and then refusing access to documents on the ground that they are not contained in the personnel file.

To accomplish this, the statute defines an employee’s personnel file as anything “used to determine that employee’s qualifications for employment, promotion, additional compensation, or termination or other disciplinary action.”