New York Legislature Passes Bill Expanding Employee Access to Personnel Records

New York employers may soon need to establish, for the first time, procedures for their employees to access personnel records. Specifically, the New York Legislature recently passed a new law, Senate Bill S3460, which amends the New York Labor Law and grants employees broad rights to access their personnel files, including a requirement for employers to notify employees when certain negative information is added to their file. The bill has been delivered to Governor Kathy Hochul and is widely expected to be signed into law. If enacted, the law will take effect 60 days after signing.

The legislation would establish a statewide personnel records access requirement applicable to both public and private sector employees in New York and would impose several new notice, disclosure, and recordkeeping obligations on employers.

The Specifics

Employee Right to Access Personnel Records

The bill provides employees with the right to inspect and obtain copies of their personnel records. Employers would be required to furnish requested records within five business days after receiving a written request from an employee. Employees may make such requests up to twice per calendar year.

The legislation defines personnel records broadly and is expected to cover many of the documents employers maintain concerning an employee's performance, discipline, compensation, qualifications, and employment history. Specifically, the bill states, "all of the following written information or documents to the extent prepared by an employer regarding an employee shall be included in the personnel record for that employee: the name, address, date of birth, job title and description; rate of pay and any other compensation paid to the employee; starting date of employment; the job application of the employee; resumes or other forms of employment inquiry submitted to the employer in response to the employer's advertisement by the employee; all employee performance evaluations, including but not limited to, employee evaluation documents; written warnings of substandard performance; lists of probationary periods; waivers signed by the employee; copies of dated termination notices; any other documents relating to disciplinary action regarding the employee."

New Notice Requirements for "Negative Information"

Perhaps the most significant aspect of the bill is its requirement that employers notify employees whenever negative information is placed in their personnel file. Under the legislation, employers would be required to provide notice to an employee within 10 days after placing "negative information" in the employee's file. Negative information includes information that may affect:

• Qualification for employment;
• Promotion opportunities;
• Transfers;
• Additional compensation; or
• The possibility of disciplinary action.

This requirement may necessitate substantial changes to existing performance management and disciplinary practices, particularly for employers that do not currently provide employees with copies of written warnings, performance evaluations, investigation findings, or other adverse employment documentation.

Notably, a review of a personnel file after a notification of negative information shall not be deemed to constitute one of the two annual reviews.

Employee Right to Respond

The bill would also grant employees the right to submit a written response disputing information contained in their personnel file. If an employee disagrees with information maintained by the employer, the employee may submit a written statement, which the employer must include as part of the personnel record.

This provision effectively creates a statutory process for employees to memorialize objections to disciplinary findings, performance evaluations, and other adverse documentation.

Recordkeeping Requirements

The bill requires employers to retain the complete personnel record of any employee for three years after the end of the employee's employment.

Enforcement and Remedies

The bill contains anti-retaliation provisions protecting employees who exercise rights under the statute. Employees who experience discrimination or retaliation for requesting records or otherwise exercising their rights would have a private right of action to seek injunctive relief to remove information from personnel files that the employer knew or should have known was false.

The New York attorney general will also have authority to seek civil penalties ranging from $500 to $2,500 against violators.

Next Steps for Employers

Although Governor Hochul has yet to sign the bill, employers with operations in New York should begin preparing for compliance now, particularly given the law's relatively short 60-day implementation period following enactment.

Employers should consider:

• Reviewing existing personnel file policies and practices;
• Identifying what documents are maintained in employees' personnel records;
• Developing procedures to respond to personnel file requests within five business days;
• Implementing processes to provide timely notice when negative information is added to a personnel file;
• Training human resources personnel and managers regarding the new notice obligations;
• Reviewing document retention and performance-management practices; and
• Updating employee handbooks and personnel record policies as necessary.

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Roy Salins is a partner and Kerry Burns is an associate, both located in DWT's New York office. DWT will continue to monitor developments and is available to assist employers with compliance. For questions about how the law may impact your company, please contact the authors or another member of our employment services team. To stay informed, sign up for our alerts.