A state worker purged his personnel file 2 years in a row. New court ruling bars that practice

The state of California will be able to keep negative information in many state workers’ personnel files longer under a little-noticed appellate court opinion from December.

Likely affected are about 119,000 California state employees with contracts that say they may purge their personnel files once a year. The purges are a way to limit the amount of information an employer may use when imposing discipline on an employee.

The Fifth District Court of Appeal issued an opinion Dec. 17 ruling that one-year file purges violate merit principles in the state constitution.

The one-year provision appears in state contracts with SEIU Local 1000, the Union of American Physicians and Dentists, AFSCME and the International Union of Operating Engineers.

The appellate court ruling originated with a dispute between the International Union of Operating Engineers and the Department of Water Resources.

A department employee, who is identified in the appellate ruling only by his initials, B.H., requested in 2014 and in 2015 that his personnel file be purged of negative materials, according to the ruling.

Nevertheless, the department cited conduct from 2013 through 2015 in a notice of adverse action it issued in March 2017, notifying the employee his pay would be reduced by 10% for a year.

The notice said the reduction was for “inefficiency, inexcusable neglect of duty, insubordination, dishonesty, discourteous treatment of the public or other employees, and willful disobedience,” among other things, according to the ruling.

The employee appealed the discipline to the State Personnel Board and ended up with a settlement that reduced the 10% pay reduction to six months, according to the ruling.

The union filed a grievance over the department’s use of materials the employee had wanted purged. After an arbitrator sided with the union, the state Human Resources Department filed a lawsuit in December 2017.

A trial court also sided with the union. The Human Resources Department appealed, winning the favorable decision from the appellate court.

Key to the appellate court’s ruling was the state’s principle of “progressive discipline.”

When departments discipline employees and employees appeal the discipline to the State Personnel Board, departments often have to show the board they applied discipline progressively in accord with civil service rules.

Purging disciplinary files would severely hamper departments’ ability to show they had applied discipline progressively, since they would only be able to reference one years’ worth of employment history, Jennifer Dong Kawate, the Department of Water Resources’ human resources chief, said in a written trial court declaration.

The purges also could affect things like investigations and workers compensation claims, Kawate said in the declaration.

Also common in state employee contracts are three-year file purge provisions. The appellate court specified it was taking no position on three-year provisions. The ruling notes that three-year purge provisions align with the state’s three-year statute of limitations on imposing discipline for past misconduct.

Three-year provisions appear in contracts for the California Correctional Peace Officers Association, the California Statewide Law Enforcement Association, the Professional Engineers in California Government, the California Association of Professional Scientists, the California Association of Psychiatric Technicians and the California Attorneys, Administrative Law Judges, and Hearing Officers in State Employment.

Contracts for Cal Fire Local 2881 and the California Association of Highway Patrolmen don’t include the same kind of purge provisions.

The three-year language could guide future negotiations over how to replace the contract provisions the court threw out, said Steve Kaiser, an attorney with Sacramento-based law firm Messing, Adam and Jasmine, who wrote about the opinion in the law firm’s “Labor Beat” newsletter.

“That provision in the contract can’t be enforced,” said Kaiser. “It leaves them with what can be enforced.”

This story was originally published May 12, 2021 at 5:25 AM with the headline "A state worker purged his personnel file 2 years in a row. New court ruling bars that practice."