On September 9, New York Governor Kathy Hochul signed into law the Employee Access to Personnel Records bill, which amends New York Labor Law to add new section 210-b. Modeled after a similar Massachusetts personnel records law, the statute grants current and former employees access to their personnel records upon request and imposes new notice and record-retention obligations on New York employers.
KEY EMPLOYER OBLIGATIONS
The law covers both public and private employers, including individuals, corporations, partnerships, labor organizations, unincorporated associations, other legal businesses, governmental and public employers, and employer agents. It requires employers to provide current and former employees with a copy of their “personnel record” (as defined in the statute and summarized below) within five business days of a written request, at no cost to the employee.
Employers must also notify employees within 10 days of placing information in their personnel records that may negatively affect their employment, promotion, transfer, compensation, or potential discipline. If an employee disputes information contained in the personnel record, the employee may submit a written statement to respond to such information.
Under the new law, to the extent employers create personnel records, they are required to maintain them from the date of employment through three years after termination. If an employer maintains a written personnel policy regarding the terms and conditions of employment, the policy must also be continuously maintained at the office where personnel matters are administered.
Employers are prohibited from retaliating against employees who exercise their rights under the law, including through immigration-related conduct targeting the employee or the employee’s family or household members. Employers that fail to comply may face fines ranging from $500 to $2,500, which are enforced by the New York State Attorney General.
WHAT IS A PERSONNEL RECORD?
In the law’s text, a personnel record is defined as a record maintained by an employer that “identifies an employee, to the extent that the record is used, or has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation, or disciplinary action.”
The definition also extends to records maintained by third parties under contract with the employer. All personnel records must be kept in typewritten or printed form, or may be handwritten in indelible ink.
Covered personnel records include the following:
- Name, address, date of birth, job title, and job description
- Documents evidencing rate of pay and any other compensation
- Starting date of employment
- Job application for employee’s position
- Resumes and other employment inquiries submitted in response to an employer advertisement
- Performance evaluations
- Written warnings of substandard performance
- Probationary-period information
- Waivers signed by the employee
- Dated termination notices
- “Any other documents relating to disciplinary action regarding the employee”
Notably, the law also contains a privacy carveout, confirming that a “personnel record” does not include information of a personal nature about someone other than the employee if disclosure of the information would constitute an unwarranted invasion of that other person’s privacy.
On its face, this carveout could include certain investigation materials that contain statements by individuals other than the employee, and potentially be applied more expansively.
EMPLOYEE RIGHT TO REVIEW AND DISPUTE RECORDS
While employees will be permitted to review their personnel records twice in a calendar year, a review prompted by the placement of negative information in an employee’s personnel record following notice to the employee will not count toward that annual limit.
Employees also have a right to challenge the information in their personnel records through a process established by the law. First, any disagreement over information in an employee’s personnel file may be mutually removed or corrected by agreement between the employer and the employee.
If an agreement is not reached, the employee can submit a written statement explaining their position, which shall become part of the personnel record and shall accompany the disputed information when it is sent to a third party.
Disputed information may also be expunged through a collective bargaining agreement, applicable personnel procedures, or a judicial process where the employer knew or should have known that the information was false. The law does not supersede a collective bargaining agreement that provides employees with similar access rights to their personnel records.
Employers are prohibited from retaliating against an employee who exercises such rights under the law.
POTENTIAL CHAPTER AMENDMENT
When Governor Hochul signed the Employee Access to Personnel Records bill into law, she also issued an approval memorandum identifying ambiguities she perceived in the legislation and indicating that these ambiguities would be addressed in a future legislative session.
As a result, any future chapter amendment is expected to clarify that:
- Employers are not required to create a personnel file or produce documents beyond those they already maintain; and
- Personnel records are defined to include only records or documents used to determine an employee’s qualifications for hiring, retention, promotion, transfer, additional compensation, or disciplinary action.
EMPLOYER CONSIDERATIONS
Because this law will take effect in less than 60 days, employers should prepare to take the following actions to comply with its provisions:
- Review existing practices for creation and maintenance of personnel records to ensure retention as required by the law as well as ability to retrieve and produce such records within the statutory period.
- Establish procedures for notifying employees of negative information placed in personnel file and responding to requests within the applicable deadlines, including potential designation of personnel and/or processes to respond.
- Provide training to managers, human resources, and other personnel regarding the new requirements.
- Review and update employee handbooks and personnel policies, as appropriate, to reflect new employee access, notice, and rebuttal rights.
- Monitor developments concerning the anticipated chapter amendment before and after the law’s November 8 effective date.
