STATE OF NEW YORK ________________________________________________________________________ 1959--A 2023-2024 Regular Sessions IN ASSEMBLY January 23, 2023 ___________ Introduced by M. of A. GONZALEZ-ROJAS, JACKSON, DINOWITZ, EPSTEIN, MAMDANI, GOODELL, SILLITTI, GLICK -- read once and referred to the Committee on Labor -- recommitted to the Committee on Labor in accord- ance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee AN ACT to amend the labor law, in relation to employee access to person- nel records The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The labor law is amended by adding a new section 210-b to 2 read as follows: 3 § 210-b. Access to personnel records. 1. As used in this section, the 4 following terms shall, unless the context clearly requires otherwise, 5 have the following meanings: 6 (a) "Employee" means a person currently employed or formerly employed 7 by an employer. 8 (b) "Employer" means any individual, corporation, partnership, labor 9 organization, unincorporated association or any other legal business, 10 including any governmental entity or public employer as defined in para- 11 graph (a) of subdivision six of section two hundred one of the civil 12 service law, and any commercial entity, including agents of such employ- 13 er. 14 (c) "Personnel record" means a record kept by an employer that identi- 15 fies an employee, to the extent that the record is used or has been 16 used, or may affect or be used relative to that employee's qualifica- 17 tions for employment, promotion, transfer, additional compensation or 18 disciplinary action. A personnel record shall include a record in the 19 possession of a person, corporation, partnership or other association 20 that has a contractual agreement with the employer to keep or supply a 21 personnel record as provided in this section. A personnel record shall EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01556-07-4A. 1959--A 2 1 not include information of a personal nature about a person other than 2 the employee if disclosure of the information would constitute a clearly 3 unwarranted invasion of such other person's privacy. Without limiting 4 the applicability or generality of the foregoing, all of the following 5 written information or documents to the extent prepared by an employer 6 regarding an employee shall be included in the personnel record for that 7 employee: the name, address, date of birth, job title and description; 8 rate of pay and any other compensation paid to the employee; starting 9 date of employment; the job application of the employee; resumes or 10 other forms of employment inquiry submitted to the employer in response 11 to his advertisement by the employee; all employee performance evalu- 12 ations, including but not limited to, employee evaluation documents; 13 written warnings of substandard performance; lists of probationary peri- 14 ods; waivers signed by the employee; copies of dated termination 15 notices; any other documents relating to disciplinary action regarding 16 the employee. A personnel record shall be maintained in typewritten or 17 printed form or may be handwritten in indelible ink. 18 2. An employer shall notify an employee within ten days of the employ- 19 er placing in the employee's personnel record any information to the 20 extent that the information is, has been used or may be used, to nega- 21 tively affect the employee's qualification for employment, promotion, 22 transfer, additional compensation or the possibility that the employee 23 will be subject to disciplinary action. An employer receiving a written 24 request from an employee to access such employee's personnel record 25 shall provide the employee with a copy of such personnel record, at no 26 cost to the employee, within five business days of submission of a writ- 27 ten request for such copy to the employer. An employer shall not be 28 required to allow an employee to review the employee's personnel record 29 on more than two separate occasions in a calendar year; provided, howev- 30 er, that the notification and review caused by the placing of negative 31 information in the personnel record shall not be deemed to be one of the 32 two annually permitted reviews. 33 3. If there is a disagreement with any information contained in a 34 personnel record, removal or correction of such information may be mutu- 35 ally agreed upon by the employer and the employee. If an agreement is 36 not reached, the employee may submit a written statement explaining the 37 employee's position which shall be contained and become a part of such 38 employee's personnel record. The statement shall be included when said 39 information is transmitted to a third party as long as the original 40 information is retained as part of the file. If an employer places any 41 information in a personnel record which such employer knew or should 42 have known to be false, the employee shall have remedy through the 43 collective bargaining agreement, other personnel procedures or judicial 44 process to have such information expunged. An employee may bring an 45 action in a court of competent jurisdiction to have false information 46 removed from such employee's personnel record. The provisions of this 47 section shall not prohibit the removal of information contained in a 48 personnel record upon mutual agreement of the employer and employee for 49 any reason. 50 4. An employer shall retain the complete personnel record of any 51 employee as required to be kept under this section without deletions or 52 expungement of information from the date of employment of such employee 53 to a date three years after the termination of employment of the employ- 54 ee with such employer. In any cause of action brought by an employee 55 against such employer in any administrative or judicial proceeding such 56 employer shall retain any personnel record required to be kept underA. 1959--A 3 1 this section which is relevant to such action until the final disposi- 2 tion thereof. 3 5. If an employer elects to have a written personnel policy regarding 4 the terms and conditions of employment, such personnel policy, as the 5 same may be amended from time to time, shall be continuously maintained 6 at the office of such employer where personnel matters are administered. 7 6. Nothing in this section shall be construed to supersede the terms 8 of a collective bargaining agreement, provided, however, that such 9 agreement provides at least substantially similar access by an employee 10 to their personnel records as that provided by this section. 11 7. Any violation of this section by an employer or any other person 12 shall be punished by a fine of not less than five hundred nor more than 13 twenty-five hundred dollars. This section shall be enforced by the 14 attorney general. 15 8. No employer or any other person shall discharge, threaten, penal- 16 ize, or in any other manner discriminate or retaliate against any 17 employee who exercises such employee's rights under this section. As 18 used in this section, to threaten, penalize, or in any other manner 19 discriminate or retaliate against an employee includes, but is not 20 limited to, threatening to contact or contacting United States immi- 21 gration authorities or otherwise reporting or threatening to report an 22 employee's suspected citizenship or immigration status or the suspected 23 citizenship or immigration status of an employee's family or household 24 member, as defined in subdivision two of section four hundred fifty- 25 nine-a of the social services law, to a federal, state or local agency. 26 9. An employee may bring a civil action in a court of competent juris- 27 diction against any employer or persons alleged to have discriminated or 28 retaliated against such employee for the exercise of such employee's 29 rights under this section. The court shall have jurisdiction to restrain 30 violations of this section, within two years of such violation, regard- 31 less of the dates of employment of the employee, and to order all appro- 32 priate relief, including: enjoining the conduct of any person or employ- 33 er; ordering payment of liquidated damages, costs, and reasonable 34 attorneys' fees to the employee by the person or entity in violation; 35 and, where the person or entity in violation is an employer, ordering 36 rehiring or reinstatement of the employee to his or her former position 37 with restoration of seniority or an award of front pay in lieu of rein- 38 statement, and an award of lost compensation and damages (including, but 39 not limited to, compensatory and punitive damages), costs and reasonable 40 attorneys' fees. Liquidated damages shall be calculated as an amount not 41 more than twenty thousand dollars. The court shall award liquidated 42 damages to every employee aggrieved under this section, in addition to 43 any other remedies permitted by this section. 44 10. At or before the commencement of any action under this section, 45 notice thereof shall be served upon the attorney general by the employ- 46 ee. 47 § 2. This act shall take effect on the sixtieth day after it shall 48 have become a law. Effective immediately, the addition, amendment, 49 and/or repeal of any rule or regulation necessary for the implementation 50 of this act on its effective date are authorized to be made and 51 completed on or before such effective date.