Bill Text: NJ A3374 | 2012-2013 | Regular Session | Introduced
Bill Title: Provides certain employees access to certain personnel records.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2012-10-15 - Introduced, Referred to Assembly Labor Committee [A3374 Detail]
Download: New_Jersey-2012-A3374-Introduced.html
Sponsored by:
Assemblyman JOHN F. AMODEO
District 2 (Atlantic)
SYNOPSIS
Provides certain employees access to certain personnel records.
CURRENT VERSION OF TEXT
As introduced.
An Act providing certain current and previous employees access to certain personnel records and supplementing P.L.1941, c.100 (C.34:13A-1 et seq.).
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. As used in this act:
a. "Employee" means a person currently employed, or subject to recall after layoff or leave of absence with a right to return to a position with an employer, or a former employee who has terminated service within the preceding year.
b. "Employer" means an individual, corporation, partnership, labor organization, unincorporated association, the State, an agency or a political subdivision of the State, or any other legal, business, or commercial entity which has five employees or more than five employees exclusive of the employer's parent, spouse or child or other immediate family members and includes an agent of the employer.
2. Every employer shall upon an employee's request, which the employer may require be in writing on a form supplied by the employer, permit the employee to inspect any personnel documents which are, have been, or are intended to be used in determining that employee's qualifications for employment, promotion, transfer, additional compensation, discharge or other disciplinary action, except as provided in section 10 of this act. The inspection right encompasses personnel documents in the possession of a person, corporation, partnership, or other association having a contractual agreement with the employer to keep or supply a personnel record. An employee may request all or any part of the records, except as provided in section 10 of this act. The employer shall grant at least two inspection requests by an employee in a calendar year when requests are made at reasonable intervals, unless otherwise provided in a collective bargaining agreement. The employer shall provide the employee with the inspection opportunity within seven working days after the employee makes the request or if the employer can reasonably show that such deadline cannot be met, the employer shall have an additional seven days to comply. The inspection shall take place at a location reasonably near the employee's place of employment and during normal working hours. The employer may allow the inspection to take place at a time other than working hours or at a place other than where the records are maintained if that time or place is more convenient for the employee. Nothing in this act shall be construed as permitting an employee to remove any records from the place where the records are made available for inspection. Each employer shall retain the right to protect the records from loss, damage, or alteration to insure the integrity of the records. If an employee demonstrates the inability to review the records at the employing unit, the employer shall, upon the employee's written request, mail a copy of the requested record to the employee.
3. After the inspection time provided pursuant to section 2 of this act, an employee may obtain a copy of the information or part of the information contained in the employee's personnel record. An employer may charge a reasonable fee for providing a copy of that information. The fee shall be limited to the actual cost of duplicating the information.
4. Personnel information not included in the personnel record, but required by this act to be included shall not be used by an employer in a judicial or quasi-judicial proceeding. However, personnel information that, in the opinion of the judge in a judicial proceeding or the hearing officer in a quasi-judicial proceeding, was not intentionally excluded from the personnel record may be used by the employer in the proceeding if the employee agrees or has been given a reasonable time to review the information. Material which should have been included in the personnel record shall be used at the request of the employee.
5. An employee may designate in writing a representative of the employee's union or collective bargaining unit or other representative to inspect information in the employee's personnel record, except as provided in section 10 of this act. The employer shall allow the designated representative to inspect that employee's personnel record in the same manner as provided under section 2 of this act.
6. If the employee disagrees with any information contained in the personnel record, a removal or correction of that information may be mutually agreed upon by the employer and the employee. If an agreement cannot be reached, the employee may submit a written statement explaining the employee's position. The employer shall attach the employee's statement to the disputed portion of the personnel record. The employee's statement shall be included whenever that disputed portion of the personnel record is released to a third party as long as the disputed portion is a part of the record. The inclusion of any written statement attached in the record without further comment or action by the employer shall not imply or create any presumption of employer agreement with its contents. If either the employer or the employee knowingly places in the personnel record information which is false, the employer or employee, whichever is appropriate, shall have remedy through legal action to have that information expunged.
7. a. No employer or former employer shall divulge a disciplinary report, letter of reprimand, or other disciplinary action to a third party, to a party who is not a part of the employer's organization, or to a party who is not a part of a labor organization representing the employee, without written notice as provided in this section.
b. The written notice required by subsection a. of this section shall be sent by first class mail to the employee's last known address on or before the day the information is divulged.
c. This section shall not apply if:
(1) the employee has specifically waived written notice as part of a written, signed employment application with another employer;
(2) the disclosure is ordered to a party in a legal action or arbitration; or
(3) information is requested by a government agency as a result of a claim or complaint by an employee, or as a result of a criminal investigation by such agency.
d. An employer who receives a request for records of a disciplinary report, letter of reprimand, or other disciplinary action in relation to an employee pursuant to the "Freedom of Information Act," 5 U.S.C. s. 552, may provide notification to the employee in written form as described in subsection b. of this section or through electronic mail, if available.
8. An employer shall review a personnel record before releasing information to a third party and, except when the release is ordered to a party in a legal action or arbitration, delete disciplinary reports, letters of reprimand, or other records of disciplinary action that are more than four years old.
9. No employer shall gather or keep a record of information regarding an employee's associations, political activities, publications, communications or nonemployment activities, unless the employee submits the information in writing or authorizes the employer in writing to keep or gather the information. This prohibition shall not apply to activities that:
a. Occur on the employer's premises or during the employee's working hours with that employer;
b. Interfere with the performance of the employee's duties or the duties of other employees or activities; or
c. Constitute criminal conduct or may reasonably be expected to harm the employer's property, operations or business, or could by the employee's action cause the employer financial liability.
Any information that is kept by the employer as permitted under this section shall be part of the personnel record.
10. The right of an employee or the employee's designated representative to inspect personnel records does not apply to:
a. Letters of reference for the employee or external peer review documents for academic employees of institutions of higher education;
b. Any portion of a test document, except that the employee may see a cumulative total test score for either a section of or the entire test document;
c. Materials relating to the employer's staff planning, such as matters relating to the business' development, expansion, closing or operational goals, where the materials relate to or affect more than one employee, provided, however, that this exception does not apply if those materials are, have been, or are intended to be used by the employer in determining an individual employee's qualifications for employment, promotion, transfer, or additional compensation, or in determining an individual employee's discharge or discipline;
d. Information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of the other person's privacy;
e. An employer who does not maintain any personnel records;
f. Records relevant to any other pending claim between the employer and employee which may be discovered in a judicial proceeding; and
g. Investigatory or security records maintained by an employer to investigate criminal conduct by an employee or other activity by the employee which could reasonably be expected to harm the employer's property, operations, or business or could by the employee's activity cause the employer financial liability, unless and until the employer takes adverse personnel action based on information in those records.
11. This act shall not be construed to diminish a right of access to records already otherwise provided by law, provided that disclosure of performance evaluations under the "Freedom of Information Act," 5 U.S.C. s. 552 shall be prohibited.
12. An employee may file a complaint with the Department of Labor and Workforce Development regarding a violation of any provision of this act. The department shall investigate the complaint and shall have authority to request the issuance of a search warrant or subpoena to inspect the files of the employer, if necessary. The department shall attempt to resolve the complaint by conference, conciliation, or persuasion. If the complaint is not resolved and the department finds the employer has violated the act, the department may institute a civil action in a court of competent jurisdiction to enforce the provisions of this act, including an action to compel compliance.
13. a. An employee may institute a civil action in a court of competent jurisdiction to enforce the provisions of this act, including an action to compel compliance when efforts to resolve the employee's complaint concerning the violation by conference, conciliation or persuasion pursuant to section 12 of this act have failed and the Department of Labor and Workforce Development has not commenced an action to redress the violation. In response to any action filed by the employee or the department, the court may, as it deems appropriate, order or award the following:
(1) Actual damages plus any reasonable attorney's or court fees; and
(2) A civil penalty in an amount not to exceed $1,000 for the first violation and $2,500 for each subsequent violation, collectible by the Commissioner of Labor and Workforce Development in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
b. Any employer or his agent, or the officer or agent of any private employer, who discharges or in any other manner discriminates against any employee because that employee has made a complaint to his employer, or to the department, or because that employee has caused to be instituted or is about to cause to be instituted any proceeding under or related to this act, or because that employee has testified or is about to testify in an investigation or proceeding under this act shall be subject to a civil penalty in an amount not to exceed $1,000 for the first violation and $2,500 for each subsequent violation, collectible by the commissioner in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
14. The Commissioner of Labor and Workforce Development shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.). rules and regulations necessary to implement the provisions of this act.
15. This act shall take effect immediately.
STATEMENT
This bill supplements the "New Jersey Employer-Employee Relations Act" to provide employees, or their representatives, access to the individual's personnel records during employment and for up to one year after termination of employment.
Employers with five or more employees must allow employees, previous employees, or their representatives to inspect personnel files twice a year at reasonable intervals, unless a collective bargaining agreement provides otherwise. The employer must comply with the request within seven working days at or near the worksite, or at the employer's discretion, during nonworking hours at a different location if more convenient for the employee.
After reviewing the records, the employee may request a copy of the records and the employer may charge only for the actual cost of duplication of the records. If the employee is unable to view files at or near the worksite, the employer, upon receipt of a written request, must mail the employee a copy of the records.
If an employee disagrees with any information in the personnel file and cannot reach an agreement with the employer to remove or correct it, the employee may submit an explanatory written statement.
Additionally, the bill establishes parameters for employers concerning the release of the employee's personnel records to outside sources and the length of time that certain personnel information may be retained by the employer.
If the Department of Labor and Workforce Development finds that an employer has violated the act, the department will first try to resolve the complaint by conference, conciliation or persuasion. If the complaint has not been resolved, the department may institute a civil action in a court of competent jurisdiction. If the department does not institute a civil action, the employee may commence such an action.
An employer who violates the provisions of this act may be ordered by the court to pay a prevailing employee actual damages plus reasonable attorney and court costs. Furthermore, the employer may be subject to a civil penalty in an amount not to exceed $1,000 for the first violation and $2,500 for each subsequent violation, collectible by the Commissioner of Labor and Workforce Development.
