New York Legislature Passes Personnel Records Access Law
The New York State legislature passed a bill that, if enacted, would grant current and former employees the right to access their personnel records and require employers to notify employees when negative information is placed in their personnel records. The legislation has not yet been presented to the Governor; but if enacted, would be a major change to New York law, which does not currently grant employees a statutory right to access their personnel records.
The bill would impose two core requirements. First, employers would need to provide a copy of an employee’s personnel record to them within five business days of the employee’s written request for the record, at no cost to the employee. Employers would be required to grant such a request at least twice per calendar year. Second, employers would be required to notify employees within ten days of the employer placing in the employee’s personnel record any information that has been or may be used to negatively affect the employee’s qualification for employment, promotion, transfer, or compensation, or that may affect the possibility that the employee will be subject to disciplinary action. If an employee requests review of their personnel record following this notification, that request for review would not count against the employee’s two annual requests. Notably, these requirements would apply to both current and former employees, such that employers would be required to allow former employees to access their personnel records and to notify them of the inclusion of negative information in their personnel record following separation from employment.
The bill defines “personnel records” broadly to include any records kept by an employer that identify an employee, to the extent the records are or have been used for, or could be used for or affect, the employee’s qualifications for employment, promotion, transfer, additional compensation, or disciplinary action. The definition also includes records held by third parties that maintain or supply personnel records under a contract with the employer (e.g., a PEO). The bill provides a non-exhaustive list of documents that would constitute a personnel record, including basic identifying and job information, pay and compensation records, job applications and related submissions, performance evaluations, written warnings, materials related to probationary periods, waivers signed by the employee, termination notices, and other documents related to disciplinary action. However, the definition excludes personal information about individuals other than the employee if disclosure would constitute a clearly unwarranted invasion of privacy.
The bill also outlines a procedure employers must follow if an employee disagrees with information in their personnel record: the employer and employee may mutually agree to correct or remove the information from the employee’s personnel record. If no agreement is reached, the employee may submit a written statement in response, which the employer must then include in the personnel record and provide any time the personnel record with the disputed information is transmitted to a third party. If an employer includes information in a personnel record that they knew, or should have known, was false, the employee may seek expungement of such information through a collective bargaining agreement, personnel procedures, or judicial process. The bill would also permit the New York State Attorney General to impose fines on employers who violate the new requirements.
Finally, if the bill is enacted, employers will also be required to retain a complete personnel record on each employee from the beginning of an employee’s employment through three years after termination.
We are continuing to monitor the legislation for developments, including presentation to the Governor. If enacted, the law would take effect 60 days after enactment. Employers with questions about the pending legislation or their personnel record practices and policies generally should contact Kate Townley at ktownley@fglawllc.com or any other attorney at the Firm.
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