Bill Text: NY S05044 | 2019-2020 | General Assembly | Introduced


Bill Title: Provides public and private employees the right to review their personnel file.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced) 2019-04-04 - REFERRED TO LABOR [S05044 Detail]

Download: New_York-2019-S05044-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          5044
                               2019-2020 Regular Sessions
                    IN SENATE
                                      April 4, 2019
                                       ___________
        Introduced by Sens. PARKER, SEPULVEDA -- read twice and ordered printed,
          and when printed to be committed to the Committee on Labor
        AN  ACT to amend the labor law and the civil service law, in relation to
          employees' right to review personnel 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 211-b to
     2  read as follows:
     3    § 211-b. Employee right to review personnel records. 1.  The  employer
     4  shall, upon written request from an employee or former employee, provide
     5  such  employee,  former  employee  separated  from  employment with such
     6  employer within the previous three years, representative of a recognized
     7  or certified employee organization or attorney of such employee with  an
     8  opportunity  to  review  and  copy  the employee's personnel file if the
     9  employer has a personnel file for that employee. The review and  copying
    10  must take place at the location where the personnel files are maintained
    11  and during normal business hours unless, at the employer's discretion, a
    12  more convenient time and location for the employee are arranged.
    13    2.  In  each  calendar year, the employer shall provide, at no cost to
    14  the employee, one copy of the entire personnel file  when  requested  by
    15  the  employee  or  former  employee  separated from employment with such
    16  employer within the last three years and, when requested by the employee
    17  or former employee separated from employment within the last three years
    18  with such employer, one copy of all the material added to the  personnel
    19  file after the copy of the entire file was provided. The cost of copying
    20  any  other  material requested during the calendar year shall be paid by
    21  the employee requesting the copy.
    22    3. For purposes of this section, a personnel file includes, but is not
    23  limited to, any formal or  informal  employee  evaluations  and  reports
    24  relating  to the employee's character, credit, work habits, compensation
    25  and benefits, and nonprivileged medical records or nurses' station notes
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07708-01-9

        S. 5044                             2
     1  relating to the employee. For the purposes of  this  section,  the  term
     2  "nonprivileged medical records or nurses' station notes" means all those
     3  materials  that  have  not  been found to be protected from discovery or
     4  disclosure  in  the  course of civil litigation or subject to the Health
     5  Insurance Portability and Accountability Act (HIPAA).
     6    4. Records in a personnel file may be maintained in any form including
     7  paper, microfiche or electronic form. An employer maintaining records in
     8  a form other than paper shall have available  to  the  employee,  former
     9  employee  separated from employment with such employer within the previ-
    10  ous three years, representative of a recognized  or  certified  employee
    11  organization  or  attorney  of  such employee the equipment necessary to
    12  review and copy the personnel file. The  employer  shall  take  adequate
    13  steps  to  ensure  the  integrity  and  confidentiality of such employee
    14  records.
    15    5. Any employer who, following a request  pursuant  to  this  section,
    16  fails  without good cause to provide an opportunity for review and copy-
    17  ing of a personnel file, within ten days of receipt of such request,  is
    18  subject to a civil fine of twenty-five dollars for each day such failure
    19  continues,  except  that such fine shall not exceed five hundred dollars
    20  per request. An employee, former employee or the department may bring an
    21  action in a court of competent jurisdiction for such  equitable  relief,
    22  including an injunction, as the court may consider necessary and proper.
    23  The  employer  may  also  be  required to reimburse the employee, former
    24  employee separated from employment with such employer within the  previ-
    25  ous  three  years  or the department for costs reasonably related to the
    26  litigation including reasonable attorney's fees, if the employee or  the
    27  department  receives a judgment in the employee's or department's favor,
    28  respectively.
    29    6. This section shall not be deemed to  diminish  the  rights  of  any
    30  employee pursuant to a collective bargaining agreement.
    31    §  2.  The civil service law is amended by adding a new section 153 to
    32  read as follows:
    33    § 153. Employee right to review personnel  records.  1.  The  employer
    34  shall,  upon  written  request from an employee or former employee sepa-
    35  rated from employment with  such  employer  within  the  previous  three
    36  years,  provide such employee, former employee separated from employment
    37  with such employer within the previous three years, representative of  a
    38  recognized  or  certified  employee  organization  or  attorney  of such
    39  employee with an opportunity to review and copy the employee's personnel
    40  file if the employer has a personnel file for that employee. The  review
    41  and  copying  must  take place at the location where the personnel files
    42  are maintained and during normal business hours unless, at  the  employ-
    43  er's  discretion,  a  more convenient time and location for the employee
    44  are arranged.
    45    2. In each calendar year, the employer shall provide, at  no  cost  to
    46  the  employee,  one  copy of the entire personnel file when requested by
    47  the employee or former employee  separated  from  employment  with  such
    48  employer  within  the  previous  three  years and, when requested by the
    49  employee or former employee separated from employment with such employer
    50  within the previous three years, one copy of all the material  added  to
    51  the  personnel  file after the copy of the entire file was provided. The
    52  cost of copying any other material requested during  the  calendar  year
    53  shall be paid by the employee requesting the copy.
    54    3. For purposes of this section, a personnel file includes, but is not
    55  limited  to,  any  formal  or  informal employee evaluations and reports
    56  relating to the employee's character, credit, work habits,  compensation

        S. 5044                             3
     1  and benefits, and nonprivileged medical records or nurses' station notes
     2  relating  to  the  employee.  For the purposes of this section, the term
     3  "nonprivileged medical records or nurses' station notes" means all those
     4  materials  that  have  not  been found to be protected from discovery or
     5  disclosure in the course of civil litigation or subject  to  the  Health
     6  Insurance Portability and Accountability Act (HIPAA).
     7    4.  Records  in a personnel file may be maintained in any form includ-
     8  ing, paper, microfiche  or  electronic  form.  An  employer  maintaining
     9  records in a form other than paper shall have available to the employee,
    10  former  employee  or duly authorized representative the equipment neces-
    11  sary to review and copy the personnel  file.  The  employer  shall  take
    12  adequate  steps  to  ensure  the  integrity  and confidentiality of such
    13  employee records.
    14    5. Any employer who, following a request  pursuant  to  this  section,
    15  fails  without good cause to provide an opportunity for review and copy-
    16  ing of a personnel file, within ten days of receipt of such request,  is
    17  subject to a civil fine of twenty-five dollars for each day such failure
    18  continues,  except  that such fine shall not exceed five hundred dollars
    19  per request. An employee, former employee or the department of labor may
    20  bring an action in a court of competent jurisdiction for each such equi-
    21  table relief, including an injunction, as the court may consider  neces-
    22  sary  and  proper.  The  employer  may also be required to reimburse the
    23  employee, former employee separated from employment with  such  employer
    24  within  the  previous  three  years or the department of labor for costs
    25  reasonably related to the  litigation  including  reasonable  attorney's
    26  fees, if the employee or the department of labor receives a judgement in
    27  the employee's or such department's favor, respectively.
    28    6.  This  section  shall  not  be deemed to diminish the rights of any
    29  employee pursuant to a collective bargaining agreement.
    30    § 3. This act shall take effect immediately.
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