The New York Assembly and Senate recently passed S3460, which gives current and former employees the right to access their own personnel records. If S3460 becomes law, it would amend the New York Labor Law to add new §210-b and take effect 60 days after enactment.
Prompt and Cost-Free Access
Under new §210-b, an employer, including any governmental entity or public employer, would be required to provide a complete copy of an employee’s personnel records within five business days of receiving a written request at no cost to the employee. Employers can limit employees to two requests each calendar year, but this cap does not apply to requests based on negative information added to the employee’s personnel records as explained below.
Broad Definition of “Personnel Record”
S3460 defines “personnel record” broadly as any record maintained by an employer that identifies an employee and currently is, has been, or in the future may be used to impact an employee’s qualifications for employment, promotion, transfer, additional compensation or disciplinary action, including, without limitation, the following:
- the name, address, date of birth, job title, and description;
- the job application, resumes or other forms of employment inquiry submitted by the employee to the employer in response to the employer’s advertisement;
- starting date of employment;
- rate of pay and any other compensation paid to the employee;
- all employee performance evaluations, including but not limited to, employee evaluation documents;
- written warnings of substandard performance, lists of probationary periods, and any other documents relating to disciplinary action regarding the employee;
- waivers signed by the employee; and
- copies of dated termination notices.
Affirmative Duty to Notify Employees of Negative Information
Significantly, S3460 would impose an affirmative duty on employers to notify their employees within 10 days of placing any information that negatively affects the employee’s qualification for employment, promotion, transfer, or additional compensation or creates the possibility that the employee will be subject to discipline.
Right to Dispute Information in the Personnel Records
If an employee disagrees with any information contained in their personnel records, the employee has a statutory right to submit a written statement explaining their position, which becomes part of their personnel records. The employee’s rebuttal would be included when the information is transmitted to a third party as long as the original negative information is part of the employee’s personnel records.
Record Retention Requirements
Under §210-b, employers would have to retain complete personnel records for at least three years after an employee’s termination of employment. An employee handbook, referred to as “a written personnel policy regarding the terms and conditions of employment,” as amended from time to time, would have to be maintained at the office of the employer where personnel matters are administered.
Collective Bargaining Agreements
New §210-b would not supersede the terms of a collective bargaining agreement, provided that such union contract provides at least substantially similar access to personnel records.
Retaliation Protection and Enforcement
The law would prohibit employers from discharging, threatening, penalizing, or discriminating against employees for exercising their rights under §210-b. Violations of §210-b would be subject to fines ranging from $500 to $2,500 per violation. The New York State Attorney General has enforcement responsibility.
Next Steps
To date, Governor Kathy Hochul has not taken a public position on this legislation. Bills that pass the Senate and Assembly generally are “called up” by the governor in batches, typically near calendar year-end. We will continue to follow this legislation.
