Bill Text: NY S09834 | 2023-2024 | General Assembly | Introduced


Bill Title: Grants employees access to personnel records; requires notice of negative information in such records and an opportunity for a review; permits employee to include certain information in personnel records.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2024-06-03 - REFERRED TO RULES [S09834 Detail]

Download: New_York-2023-S09834-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          9834

                    IN SENATE

                                      June 3, 2024
                                       ___________

        Introduced by Sen. GOUNARDES -- read twice and ordered printed, and when
          printed to be committed to the Committee on Rules

        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
    22  not include information of a personal nature about a person  other  than
    23  the employee if disclosure of the information would constitute a clearly
    24  unwarranted  invasion  of  such other person's privacy. Without limiting
    25  the applicability or generality of the foregoing, all of  the  following
    26  written  information  or documents to the extent prepared by an employer
    27  regarding an employee shall be included in the personnel record for that
    28  employee: the name, address, date of birth, job title  and  description;

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01556-12-4

        S. 9834                             2

     1  rate  of  pay  and any other compensation paid to the employee; starting
     2  date of employment; the job application  of  the  employee;  resumes  or
     3  other  forms of employment inquiry submitted to the employer in response
     4  to  the  employer's advertisement by the employee; all employee perform-
     5  ance evaluations, including but  not  limited  to,  employee  evaluation
     6  documents;  written warnings of substandard performance; lists of proba-
     7  tionary periods; waivers signed by the employee; copies of dated  termi-
     8  nation  notices;  any  other  documents  relating to disciplinary action
     9  regarding the employee. A personnel record shall be maintained in  type-
    10  written or printed form or may be handwritten in indelible ink.
    11    2. An employer shall notify an employee within ten days of the employ-
    12  er  placing  in  the  employee's personnel record any information to the
    13  extent that the information is, has been used or may be used,  to  nega-
    14  tively  affect  the  employee's qualification for employment, promotion,
    15  transfer, additional compensation or the possibility that  the  employee
    16  will  be subject to disciplinary action. An employer receiving a written
    17  request from an employee to  access  such  employee's  personnel  record
    18  shall  provide  the employee with a copy of such personnel record, at no
    19  cost to the employee, within five business days of submission of a writ-
    20  ten request for such copy to the employer.  An  employer  shall  not  be
    21  required  to allow an employee to review the employee's personnel record
    22  on more than two separate occasions in a calendar year; provided, howev-
    23  er, that the notification and review caused by the placing  of  negative
    24  information in the personnel record shall not be deemed to be one of the
    25  two annually permitted reviews.
    26    3.  If  there  is  a  disagreement with any information contained in a
    27  personnel record, removal or correction of such information may be mutu-
    28  ally agreed upon by the employer and the employee. If  an  agreement  is
    29  not  reached, the employee may submit a written statement explaining the
    30  employee's position which shall be contained and become a part  of  such
    31  employee's  personnel  record. The statement shall be included when said
    32  information is transmitted to a third party  as  long  as  the  original
    33  information  is  retained as part of the file. If an employer places any
    34  information in a personnel record which such  employer  knew  or  should
    35  have  known  to  be  false,  the  employee shall have remedy through the
    36  collective bargaining agreement, other personnel procedures or  judicial
    37  process  to  have  such  information  expunged.   The provisions of this
    38  section shall not prohibit the removal of  information  contained  in  a
    39  personnel  record upon mutual agreement of the employer and employee for
    40  any reason.
    41    4. An employer shall retain  the  complete  personnel  record  of  any
    42  employee  as required to be kept under this section without deletions or
    43  expungement of information from the date of employment of such  employee
    44  to a date three years after the termination of employment of the employ-
    45  ee with such employer.
    46    5.  If an employer elects to have a written personnel policy regarding
    47  the terms and conditions of employment, such personnel  policy,  as  the
    48  same  may be amended from time to time, shall be continuously maintained
    49  at the office of such employer where personnel matters are administered.
    50    6. Nothing in this section shall be construed to supersede  the  terms
    51  of  a  collective  bargaining  agreement,  provided,  however, that such
    52  agreement provides at least substantially similar access by an  employee
    53  to their personnel records as that provided by this section.
    54    7.  Any  violation  of this section by an employer or any other person
    55  shall be punished by a fine of not less than five hundred nor more  than

        S. 9834                             3

     1  twenty-five  hundred  dollars.  This  section  shall  be enforced by the
     2  attorney general.
     3    8.  No  employer or any other person shall discharge, threaten, penal-
     4  ize, or in any  other  manner  discriminate  or  retaliate  against  any
     5  employee  who  exercises  such  employee's rights under this section. As
     6  used in this section, to threaten, penalize,  or  in  any  other  manner
     7  discriminate  or  retaliate  against  an  employee  includes, but is not
     8  limited to, threatening to contact or  contacting  United  States  immi-
     9  gration  authorities  or otherwise reporting or threatening to report an
    10  employee's suspected citizenship or immigration status or the  suspected
    11  citizenship  or  immigration status of an employee's family or household
    12  member, as defined in subdivision two of  section  four  hundred  fifty-
    13  nine-a of the social services law, to a federal, state or local agency.
    14    §  2.  This  act  shall take effect on the sixtieth day after it shall
    15  have become a  law.  Effective  immediately,  the  addition,  amendment,
    16  and/or repeal of any rule or regulation necessary for the implementation
    17  of  this  act  on  its  effective  date  are  authorized  to be made and
    18  completed on or before such effective date.
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