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Tina
Tina, Attorney
Category: California Employment Law
Satisfied Customers: 32620
Experience:  JD, 17 years experience & recognized by ABA for excellence in employment law.
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In August of 2011, I was fired by my company and was told it

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In August of 2011, I was fired by my company and was told it was for an alleged incident that took place. I was also told that several employees were interviewed which led to my firing for misconduct. I found out that it is a California law that ex-employees can see their personnel files. I was curious to know what was in mine since my termination was sudden, strange and unwarranted. The company did send me my personnel file, but there was nothing in the file regarding my termination.

I have sent five emails to the company's attorney asking why there is noting in my personnel file regarding my termination for misconduct, and so far she has not responded to me.

Do I have any recourse in this situation?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Tina replied 2 years ago.
Hello and welcome,

Have you attempted to contact the company directly about your personnel files?

Customer: replied 2 years ago.

Yes, both the company's attorney and VP of Human Resources have been contacted. As I mentioned before, I did receive a copy of my personnel file but there was nothing in it regarding the termination for misconduct. I have sent five emails to the company's attorney (and also copied the VP of HR) asking why there is noting in my personnel file regarding my termination for misconduct, and I have not received a response from anybody after trying for over 1.5 months.


 


While I understand California is an "At Will" state, shouldn't there be substantial documentation in my personnel file to support the firing?

Expert:  Tina replied 2 years ago.
Hello again, Tom, and thank you for the additional information.

Yes, it is hard to believe the employer would not have anything in your file with regard to your termination and is likely withholding documents from you.

Where an employer refuses to provide copies as requested, you should typically contact the Division of Labor Standards Enforcement and explain that pursuant to the right granted you under Labor Code Section 1198.5 you requested to inspect your personnel file and your employer is refusing to allow you to inspect such file. DLSE will assist you by explaining the law to your employer. An employer who violates, refuses, or neglects to comply with an employee’s right of inspection is guilty of a misdemeanor. Labor Code Section 1199(c) DLSE has no authority to attempt remedial action against the employer if it violates, refuses or neglects to comply with your right of inspection, and you must avail yourself of appropriate civil remedies, such as a grievance procedure, civil action, etc.

Here is a link that sets out this information:

http://www.dir.ca.gov/dlse/FAQ_RightToInspectPersonnelFiles.htm

If the employer continues to refuse to turn over the documents, you may need to retain a local employment law attorney to aid in compelling them to provide copies of such documents.

It has been my pleasure to assist you. Please remember to press the smiley faces/stars on the right of your screen when we are finished with our communication so I will be credited for my time. Kindly remember to ONLY rate my answer when you are fully satisfied. If you feel the need to rate anything less than OK, please stop and reply to me via the REPLY TO EXPERT or CONTINUE CONVERSATION button with whatever issue or clarification you may need. I will be happy to continue further and assist you until I am able to explain your concern to your satisfaction. Please also remember that I cannot control whether the law is favorable to you or not, so please don’t shoot the messenger.

Thank you very much and all the best to you,

Tina

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:

http://www.justanswer.com/law/expert-tina/

Customer: replied 2 years ago.

What if they are not withholding anything and there are no documents pertaining to my termination even though they said they interviewed people, etc. Do I have any legal recourse? Can I file a lawsuit for wrongful termination?

Expert:  Tina replied 2 years ago.

Hello again, Tom.

As set out in the link I attached above, 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.

So, if the investigation you refer to was potentially criminal in nature, the employer would not normally have an obligation to turn over records associated with that, but employers do typically include something for their reference in an employee's personnel file indicating why there were terminated and whether they are rehirable.

The fact no such records were turned over to you indicates to me that they have not turned over all the records in your file that they are required to. Often a demand letter from an attorney would be enough to compel them to turn over such records. If it is not, then the attorney would normally file suit against the company for violating state law with regard to turning over such records and issue a subpoena for the records. The company could continue to stonewall, but ignoring a subpoena can lead to criminal prosecution, so I would hope they do not choose that course of action.


It has been my pleasure to assist you. Please remember to press the smiley faces/stars on the right of your screen when we are finished with our communication so I will be credited for my time. Kindly remember to ONLY rate my answer when you are fully satisfied. If you feel the need to rate anything less than OK, please stop and reply to me via the REPLY TO EXPERT or CONTINUE CONVERSATION button with whatever issue or clarification you may need. I will be happy to continue further and assist you until I am able to explain your concern to your satisfaction. Please also remember that I cannot control whether the law is favorable to you or not, so please don’t shoot the messenger.

Thank you very much and all the best to you,

Tina

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:

http://www.justanswer.com/law/expert-tina/

Customer: replied 2 years ago.

The issue wasn't a criminal one, and I understand what you are saying if they are potentially withholding documentation pertaining to my termination. However, my question is about the termination itself. If I was terminated for misconduct, and I have emails from the company telling me that employees were interviewed which led to my termination, shouldn't there be documentation in my personnel file to support my termination? How do I know they aren't making things up? What if there is no documentation whatsoever regarding my supposed misconduct? Do I have any recourse? Can I file a lawsuit for wrongful termination?

Expert:  Tina replied 2 years ago.
If I was terminated for misconduct, and I have emails from the company telling me that employees were interviewed which led to my termination, shouldn't there be documentation in my personnel file to support my termination? How do I know they aren't making things up? What if there is no documentation whatsoever regarding my supposed misconduct? Do I have any recourse? Can I file a lawsuit for wrongful termination?

Yes, there should be documentation, at least the e-mails you received, which would provide a basis for filing a lawsuit against the employer for violating your right to review the records in your personnel file, since you can point to documents that should be there and have not been provided to you.

You cannot know they aren't making things up until you receive all the documentation. It is HIGHLY unlikely there is no documentation with regard to your termination, and a court would not likely buy their claim that no such documentation exists and would be likely to grant a motion to compel them to turn over such documentation, or a motion filed by your attorney to hold them in contempt of court if they continue to refuse to turn over the documents relating to your documentation.

The evidence so far does not support a cause of action for wrongful termination based on what you have told me, but it could support a lawsuit for violating state law requiring them to provide an opportunity to inspect and copy your personnel records. If an attorney is successful in compelling them to turn over the documents, the documentation could support a claim for wrongful termination, depending on what is contained in the documents. The fact they continue to refuse to provide documentation regarding your termination is an indicator that they have something to hide.

It has been my pleasure to assist you. Please remember to press the smiley faces/stars on the right of your screen when we are finished with our communication so I will be credited for my time. Kindly remember to ONLY rate my answer when you are fully satisfied. If you feel the need to rate anything less than OK, please stop and reply to me via the REPLY TO EXPERT or CONTINUE CONVERSATION button with whatever issue or clarification you may need. I will be happy to continue further and assist you until I am able to explain your concern to your satisfaction. Please also remember that I cannot control whether the law is favorable to you or not, so please don’t shoot the messenger.

Thank you very much and all the best to you,

Tina

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:

http://www.justanswer.com/law/expert-tina/

Tina, Attorney
Satisfied Customers: 32620
Experience: JD, 17 years experience & recognized by ABA for excellence in employment law.
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Tina
Tina
California Employment Lawyer
32620 Satisfied Customers
JD, 17 years experience & recognized by ABA for excellence in employment law.