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The New York State Assembly has passed a bill, which if signed by the Governor, would provide employees with new rights with respect to their personnel files, including notice of, and the opportunity to respond to, certain types of “negative information” placed in their personnel files. S3460, which is modeled in part after Massachusetts’ personnel records law, would add new Section 210-b to the New York Labor Law and take effect sixty (60) days if and after Governor Hochul signs it into law.
The Law Broadly Defines “Personnel Record”.
S3460 defines a “personnel record” as a “record kept 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.” This describes what most employers know as a “personnel file.” But S3460 takes it one step further and provides a list of items that employers must include in an employee’s personnel file, including:
- The employee’s name, address, date of birth, job title, and job description;
- The job application, resumes or other forms of employment inquiry submitted by the employee to the employer in response to the employer’s job advertisement;
- The employee’s starting date of employment;
- The rate of pay and any other compensation paid to the employee (e.g., commissions, bonuses, etc.);
- All employee performance evaluations, including, without limitation, employee evaluation documents;
- Written warnings of substandard performance;
- Lists of probationary periods;
- Waivers signed by the employee;
- Copies of dated termination notices; and
- Any other documents relating to disciplinary action regarding the employee.
S3460 also explains that a personnel record does not include information “of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of such other person’s privacy.”
Employees Will Now Have the Right to Access their Personnel Records.
Employers would be required to provide a complete copy of the employee’s personnel record, at no cost to the employee, within five (5) business days of receiving a written request from an employee. An employer may limit an employee to two requests each year, but this does not apply to requests related to the placement of negative information in the employee’s personnel record (which we discuss below). Of note, because S3460 defines “employee” as “a person currently employed or formerly employed by an employer,” the personnel record request right applies to both current and former employees. The bill also does not place any restrictions on how long an employee may make a request for a personnel record after their employment ends (although an employer is only obligated to maintain a “complete personnel record” for a period of three (3) years after an employee’s termination).
Employers Would Need to Provide Notice to Employees When They Place Certain “Negative Information” Into Their Personnel Files.
S3460 would require employers to notify employees if certain types of “negative information” are placed in their personnel record. Specifically, employers must notify the employee within 10 days of the employer “placing in the employee’s personnel record any information to the extent that information is, has been used or may be used, to negatively affect the employee’s qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action.” As the law applies to former employees too, an employer appears to technically have the obligation to notify them as well on the off chance they place negative information into their file after separation.
Employees Have the Right to Request a Correction or Modification to Information in Their Personnel Records, and Otherwise to Provide Their Own Information.
If an employee disagrees with any information contained in their personnel record (not just negative information), the new law provides the employer and employee with the ability to mutually agree to remove or correct such information. But if no such agreement is reached, employees will now have the right to submit a “written statement explaining the employee’s position,” which “shall … become part of such employee’s personal record.” If certain personnel record information is later, for whatever reason, transmitted to a third party, the employer must also transmit the employee’s written statement responding to this information.
In addition to the right to submit a written statement, S3460 also affords employees the right to seek expungement of information in their personnel record that the employer “knew or should have known to be false.” Employees may seek expungement through the judicial process, a collective bargaining agreement (if applicable) and what S3460 describes as “other personnel procedures” (the latter avenue is not defined by the statute).
Employers Must Maintain Personnel Files for Three Years After an Employee’s Separation.
S3460 requires an employer to retain an employee’s “complete personnel record … without deletion or expungement” for a period of three (3) years after the termination of the employee.
Enforcement and Remedies
As discussed above, S3460 would allow employees to seek judicial relief to expunge false information from their personnel records that the employer knew or should have known was false. In addition, the New York State Attorney General has the authority to enforce S3460 and violations are punishable by penalties ranging from not less than $500 and not more than $2,500.
In addition, the newly proposed law contains a robust anti-retaliation provision, which among other things, makes it illegal to threaten to contact or contacting the U.S. Immigration Authorities to report an employee’s suspected immigration status as well as the suspected status of the employee’s family member or member of their household.
Next Steps for Employers and Questions to Consider
S3460 would add significant record retention and notice requirements for employers. While it is not yet law, and will not become effective until 60 days after the governor signs the bill, should she sign it, employers should take into consideration the following:
- Reviewing and updating recordkeeping requirements including determining:
- What documents and information are, at present, included in personnel files for employees at your company and whether it satisfies S3460.
- The length of time your company retains personnel files after an employee is separated and where does your company maintain those records.
- Developing a process for responding to employee requests for personnel records that can satisfy the five-business day timing requirement in S3460.
- Determining how to track and categorize “negative information” that is included in an employee’s personnel file and developing a notification process by which an employee receives notice of such information in a timely manner (i.e., within 10 days) and the opportunity to respond.
One other additional consideration is what qualifies as “negative information” that would trigger the notice and opportunity to respond obligations. There is not yet any guidance on the interpretation of the bill’s text, and we would not anticipate any until at the very least it is signed into law. Another aspect of the law is how it might be used as leverage in the pre-litigation context – employers will need to factor this in as they devise response strategies.
Mintz’s Employment Group will continue tracking S3460 closely and provide updates as soon as we become aware of them (particularly if the governor signs it into law over the summer).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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