Ex-Employee Can See Personnel File : ALSO: Man May Not Have Age Bias Case : Firm Changes Vacation Policy

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

A According to the Labor Code, an employer must permit 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, only on the employee’s own time, by appointment, only on recent notice, allowing a company official to monitor the inspection and limiting the frequency of inspections. An employee generally has a right to obtain copies of any documents signed by that employee.

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

You might consider stopping by your previous employer’s office unannounced and ask to look at your file. If they let you see it in this manner, they will not have a chance to “sanitize” it by deleting documents detrimental to them.

In the alternative, you might write them a letter to document your request. If they refuse or delay you access, remind them that you are entitled to it by law. In fact, willful refusal to give you access to an employee’s file could constitute a crime.

--Don D. Sessions

employee rights attorney

Mission Viejo

Retirement Notice Sent to Worker on Disability Who Wants to Stay

Q My father, who is 65 and has been with his current employer for 11 years, was recently 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

A No, it does not appear that he does.

Both federal and state age discrimination laws prohibit employers from compelling most employees to retire at any age. Therefore, even if your father had previously 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 to a set period. 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 has been 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’ Policy Won’t Fly; Vacation Time Must Be Paid or Used

Q My employer had a policy of paying off all unused vacation pay 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

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.

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.

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.

--Elizabeth Winfree-Lydon

senior staff consultant

The Employers Group

If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626 ; dictate it to (714) 966-7873; or, e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.

More on Overtime

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