Name that Section - Frequently Used Education Code and Title 5 Sections for Community College Districts

Any of these records could be used to affect the employment status or opportunities of present or former employees.

3. W HAT M AY NOT B E P LACED INTO A P ERSONNEL F ILE

The following should not be placed in “official” personnel files:

 Confirmation of counseling or oral reprimand. As a practical matter, placing written confirmation of an oral counseling into the file causes the employee to be subject to the equivalent of a written reprimand.  Grievance documents. Placing grievance documents into a personnel file may result in retaliation claims.  Employee health records, including medical and psychological information and reports. These must be placed in a sealed file.

These documents should be kept in a separate file or in a “supervisor’s” file.

B. T HE R IGHT TO I NSPECT The Education Code gives employees the right, “at reasonable intervals and at reasonable times,” to inspect personnel records relating to their work performance or any grievance relating to them. 261 Employees do not have a right to inspect letters of reference, records relating to the investigation of a criminal offense, or records obtained prior to employment. 262 The employer must make personnel records accessible “at the place where the employee reports to work” or “at the location where the employer stores the personnel records,” without loss of compensation to the employee. 263 As long as district rules do not unreasonably limit access, a district may regulate the handling of files and the location of inspections, and may require an employee to give reasonable notice before inspecting a personnel file. An employer need not make personnel records available at a time when the employee is actually required to work. An agency can and should restrict employee access to certain private information provided by third parties, such as confidential performance appraisals, even if the contents are sought by court subpoena. However, it is the employer’s duty and responsibility to protect and assert such third party rights to confidentiality. 264 To that effect, employers should take care to maintain confidential documents separate in the individual employee’s personnel file.

1. I NSPECTION

a. What May Be Inspected Although employees have the right to inspect their personnel files, the Education Code restricts access to some of the information. An employee is not entitled to records relating to the investigation of a possible criminal offense or letters of reference. 265 In addition, an employee is not entitled to ratings, reports or records that were:

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2020 (c) Liebert Cassidy Whitmore 87