The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  8008--A
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               June 4, 2021
                                ___________
 
 Introduced  by  M.  of A. GONZALEZ-ROJAS, JACKSON, FERNANDEZ, GOTTFRIED,
   DINOWITZ, LAWLER, EPSTEIN, MAMDANI, GOODELL, SILLITTI, GLICK  --  read
   once  and  referred  to  the  Committee on Labor -- recommitted to the
   Committee on Labor in accordance with  Assembly  Rule  3,  sec.  2  --
   committee  discharged,  bill amended, ordered reprinted as amended and
   recommitted to said committee
 
 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:
 
   Section  1.  The labor law is amended by adding a new section 210-b to
 read as follows:
   § 210-B. ACCESS TO PERSONNEL RECORDS. 1. AS USED IN THIS SECTION,  THE
 FOLLOWING  TERMS  SHALL,  UNLESS THE CONTEXT CLEARLY REQUIRES OTHERWISE,
 HAVE THE FOLLOWING MEANINGS:
   (A) "EMPLOYEE" MEANS A PERSON CURRENTLY EMPLOYED OR FORMERLY  EMPLOYED
 BY AN EMPLOYER.
   (B)  "EMPLOYER"  MEANS ANY INDIVIDUAL, CORPORATION, PARTNERSHIP, LABOR
 ORGANIZATION, UNINCORPORATED ASSOCIATION OR ANY  OTHER  LEGAL  BUSINESS,
 INCLUDING ANY GOVERNMENTAL ENTITY OR PUBLIC EMPLOYER AS DEFINED IN PARA-
 GRAPH  (A)  OF  SUBDIVISION  SIX OF SECTION TWO HUNDRED ONE OF THE CIVIL
 SERVICE LAW, AND ANY COMMERCIAL ENTITY, INCLUDING AGENTS OF SUCH EMPLOY-
 ER.
   (C) "PERSONNEL RECORD" MEANS A RECORD KEPT BY AN EMPLOYER THAT IDENTI-
 FIES AN EMPLOYEE, TO THE EXTENT THAT THE RECORD  IS  USED  OR  HAS  BEEN
 USED,  OR  MAY  AFFECT OR BE USED RELATIVE TO THAT EMPLOYEE'S QUALIFICA-
 TIONS FOR EMPLOYMENT, PROMOTION, TRANSFER,  ADDITIONAL  COMPENSATION  OR
 DISCIPLINARY  ACTION.  A  PERSONNEL RECORD SHALL INCLUDE A RECORD IN THE
 POSSESSION OF A PERSON, CORPORATION, PARTNERSHIP  OR  OTHER  ASSOCIATION
 THAT  HAS  A CONTRACTUAL AGREEMENT WITH THE EMPLOYER TO KEEP OR SUPPLY A
 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.
                                                            LBD10983-08-2

 A. 8008--A                          2
 
 NOT  INCLUDE  INFORMATION OF A PERSONAL NATURE ABOUT A PERSON OTHER THAN
 THE EMPLOYEE IF DISCLOSURE OF THE INFORMATION WOULD CONSTITUTE A CLEARLY
 UNWARRANTED INVASION OF SUCH OTHER PERSON'S  PRIVACY.  WITHOUT  LIMITING
 THE  APPLICABILITY  OR GENERALITY OF THE FOREGOING, ALL OF THE FOLLOWING
 WRITTEN INFORMATION OR DOCUMENTS TO THE EXTENT PREPARED BY  AN  EMPLOYER
 REGARDING AN EMPLOYEE SHALL BE INCLUDED IN THE PERSONNEL RECORD FOR THAT
 EMPLOYEE:  THE  NAME, ADDRESS, DATE OF BIRTH, JOB TITLE AND DESCRIPTION;
 RATE OF PAY AND ANY OTHER COMPENSATION PAID TO  THE  EMPLOYEE;  STARTING
 DATE  OF  EMPLOYMENT;  THE  JOB  APPLICATION OF THE EMPLOYEE; RESUMES OR
 OTHER FORMS OF EMPLOYMENT INQUIRY SUBMITTED TO THE EMPLOYER IN  RESPONSE
 TO  HIS  ADVERTISEMENT  BY THE EMPLOYEE; ALL EMPLOYEE PERFORMANCE EVALU-
 ATIONS, INCLUDING BUT NOT LIMITED  TO,  EMPLOYEE  EVALUATION  DOCUMENTS;
 WRITTEN WARNINGS OF SUBSTANDARD PERFORMANCE; LISTS OF PROBATIONARY PERI-
 ODS;  WAIVERS  SIGNED  BY  THE  EMPLOYEE;  COPIES  OF  DATED TERMINATION
 NOTICES; ANY OTHER DOCUMENTS RELATING TO DISCIPLINARY  ACTION  REGARDING
 THE  EMPLOYEE.  A PERSONNEL RECORD SHALL BE MAINTAINED IN TYPEWRITTEN OR
 PRINTED FORM OR MAY BE HANDWRITTEN IN INDELIBLE INK.
   2. AN EMPLOYER SHALL NOTIFY AN EMPLOYEE WITHIN TEN DAYS OF THE EMPLOY-
 ER PLACING IN THE EMPLOYEE'S PERSONNEL RECORD  ANY  INFORMATION  TO  THE
 EXTENT  THAT  THE INFORMATION IS, HAS BEEN USED OR MAY BE USED, TO NEGA-
 TIVELY AFFECT THE EMPLOYEE'S QUALIFICATION  FOR  EMPLOYMENT,  PROMOTION,
 TRANSFER,  ADDITIONAL  COMPENSATION OR THE POSSIBILITY THAT THE EMPLOYEE
 WILL BE SUBJECT TO DISCIPLINARY ACTION. AN EMPLOYER RECEIVING A  WRITTEN
 REQUEST  FROM  AN  EMPLOYEE  TO  ACCESS SUCH EMPLOYEE'S PERSONNEL RECORD
 SHALL PROVIDE THE EMPLOYEE WITH A COPY OF SUCH PERSONNEL  RECORD  WITHIN
 FIVE  BUSINESS  DAYS OF SUBMISSION OF A WRITTEN REQUEST FOR SUCH COPY TO
 THE EMPLOYER. AN EMPLOYER SHALL NOT BE REQUIRED TO ALLOW AN EMPLOYEE  TO
 REVIEW  THE  EMPLOYEE'S PERSONNEL RECORD ON MORE THAN TWO SEPARATE OCCA-
 SIONS IN A CALENDAR YEAR; PROVIDED, HOWEVER, THAT THE  NOTIFICATION  AND
 REVIEW  CAUSED  BY  THE PLACING OF NEGATIVE INFORMATION IN THE PERSONNEL
 RECORD SHALL NOT BE DEEMED TO BE  ONE  OF  THE  TWO  ANNUALLY  PERMITTED
 REVIEWS.
   3.  IF  THERE  IS  A  DISAGREEMENT WITH ANY INFORMATION CONTAINED IN A
 PERSONNEL RECORD, REMOVAL OR CORRECTION OF SUCH INFORMATION MAY BE MUTU-
 ALLY AGREED UPON BY THE EMPLOYER AND THE EMPLOYEE. IF  AN  AGREEMENT  IS
 NOT  REACHED, THE EMPLOYEE MAY SUBMIT A WRITTEN STATEMENT EXPLAINING THE
 EMPLOYEE'S POSITION WHICH SHALL BE CONTAINED AND BECOME A PART  OF  SUCH
 EMPLOYEE'S  PERSONNEL  RECORD. THE STATEMENT SHALL BE INCLUDED WHEN SAID
 INFORMATION IS TRANSMITTED TO A THIRD PARTY  AS  LONG  AS  THE  ORIGINAL
 INFORMATION  IS  RETAINED AS PART OF THE FILE. IF AN EMPLOYER PLACES ANY
 INFORMATION IN A PERSONNEL RECORD WHICH SUCH  EMPLOYER  KNEW  OR  SHOULD
 HAVE  KNOWN  TO  BE  FALSE,  THE  EMPLOYEE SHALL HAVE REMEDY THROUGH THE
 COLLECTIVE BARGAINING AGREEMENT, OTHER PERSONNEL PROCEDURES OR  JUDICIAL
 PROCESS  TO  HAVE  SUCH  INFORMATION  EXPUNGED. AN EMPLOYEE MAY BRING AN
 ACTION IN A COURT OF COMPETENT JURISDICTION TO  HAVE  FALSE  INFORMATION
 REMOVED FROM HIS OR HER PERSONNEL RECORD. THE PROVISIONS OF THIS SECTION
 SHALL  NOT  PROHIBIT THE REMOVAL OF INFORMATION CONTAINED IN A PERSONNEL
 RECORD UPON MUTUAL AGREEMENT  OF  THE  EMPLOYER  AND  EMPLOYEE  FOR  ANY
 REASON.
   4.  AN  EMPLOYER  SHALL  RETAIN  THE  COMPLETE PERSONNEL RECORD OF ANY
 EMPLOYEE AS REQUIRED TO BE KEPT UNDER THIS SECTION WITHOUT DELETIONS  OR
 EXPUNGEMENT  OF INFORMATION FROM THE DATE OF EMPLOYMENT OF SUCH EMPLOYEE
 TO A DATE THREE YEARS AFTER THE TERMINATION OF EMPLOYMENT OF THE EMPLOY-
 EE WITH SUCH EMPLOYER. IN ANY CAUSE OF ACTION  BROUGHT  BY  AN  EMPLOYEE
 AGAINST  SUCH EMPLOYER IN ANY ADMINISTRATIVE OR JUDICIAL PROCEEDING SUCH
 EMPLOYER SHALL RETAIN ANY PERSONNEL RECORD REQUIRED  TO  BE  KEPT  UNDER
 A. 8008--A                          3

 THIS  SECTION  WHICH IS RELEVANT TO SUCH ACTION UNTIL THE FINAL DISPOSI-
 TION THEREOF.
   5.  IF AN EMPLOYER ELECTS TO HAVE A WRITTEN PERSONNEL POLICY REGARDING
 THE TERMS AND CONDITIONS OF EMPLOYMENT, SUCH PERSONNEL  POLICY,  AS  THE
 SAME  MAY BE AMENDED FROM TIME TO TIME, SHALL BE CONTINUOUSLY MAINTAINED
 AT THE OFFICE OF SUCH EMPLOYER WHERE PERSONNEL MATTERS ARE ADMINISTERED.
   6. NOTHING  IN  THIS  SECTION  SHALL  BE  CONSTRUED  TO  ABROGATE  ANY
 CONFLICTING PROVISIONS OF ANY COLLECTIVE BARGAINING AGREEMENT.
   7.  ANY  VIOLATION  OF THIS SECTION BY AN EMPLOYER OR ANY OTHER PERSON
 SHALL BE PUNISHED BY A FINE OF NOT LESS THAN FIVE HUNDRED NOR MORE  THAN
 TWENTY-FIVE  HUNDRED  DOLLARS.  THIS  SECTION  SHALL  BE ENFORCED BY THE
 ATTORNEY GENERAL.
   8. NO EMPLOYER OR ANY OTHER PERSON SHALL DISCHARGE,  THREATEN,  PENAL-
 IZE,  OR  IN  ANY  OTHER  MANNER  DISCRIMINATE  OR RETALIATE AGAINST ANY
 EMPLOYEE WHO EXERCISES HIS OR HER RIGHTS UNDER THIS SECTION. AS USED  IN
 THIS SECTION, TO THREATEN, PENALIZE, OR IN ANY OTHER MANNER DISCRIMINATE
 OR  RETALIATE  AGAINST  AN  EMPLOYEE  INCLUDES,  BUT  IS NOT LIMITED TO,
 THREATENING TO CONTACT OR CONTACTING UNITED STATES IMMIGRATION  AUTHORI-
 TIES  OR  OTHERWISE  REPORTING  OR  THREATENING  TO REPORT AN EMPLOYEE'S
 SUSPECTED CITIZENSHIP OR IMMIGRATION STATUS OR THE SUSPECTED CITIZENSHIP
 OR IMMIGRATION STATUS OF AN EMPLOYEE'S FAMILY OR  HOUSEHOLD  MEMBER,  AS
 DEFINED  IN  SUBDIVISION TWO OF SECTION FOUR HUNDRED FIFTY-NINE-A OF THE
 SOCIAL SERVICES LAW, TO A FEDERAL, STATE OR LOCAL AGENCY.
   9. AN EMPLOYEE MAY BRING A CIVIL ACTION IN A COURT OF COMPETENT JURIS-
 DICTION AGAINST ANY EMPLOYER OR PERSONS ALLEGED TO HAVE DISCRIMINATED OR
 RETALIATED AGAINST HIM OR HER FOR THE EXERCISE  OF  HIS  OR  HER  RIGHTS
 UNDER  THIS  SECTION.  THE  COURT  SHALL  HAVE  JURISDICTION TO RESTRAIN
 VIOLATIONS OF THIS SECTION, WITHIN TWO YEARS OF SUCH VIOLATION,  REGARD-
 LESS OF THE DATES OF EMPLOYMENT OF THE EMPLOYEE, AND TO ORDER ALL APPRO-
 PRIATE RELIEF, INCLUDING: ENJOINING THE CONDUCT OF ANY PERSON OR EMPLOY-
 ER;  ORDERING  PAYMENT  OF  LIQUIDATED  DAMAGES,  COSTS,  AND REASONABLE
 ATTORNEYS' FEES TO THE EMPLOYEE BY THE PERSON OR  ENTITY  IN  VIOLATION;
 AND,  WHERE  THE  PERSON OR ENTITY IN VIOLATION IS AN EMPLOYER, ORDERING
 REHIRING OR REINSTATEMENT OF THE EMPLOYEE TO HIS OR HER FORMER  POSITION
 WITH  RESTORATION OF SENIORITY OR AN AWARD OF FRONT PAY IN LIEU OF REIN-
 STATEMENT, AND AN AWARD OF LOST COMPENSATION AND DAMAGES (INCLUDING, BUT
 NOT LIMITED TO, COMPENSATORY AND PUNITIVE DAMAGES), COSTS AND REASONABLE
 ATTORNEYS' FEES. LIQUIDATED DAMAGES SHALL BE CALCULATED AS AN AMOUNT NOT
 MORE THAN TWENTY THOUSAND DOLLARS.  THE  COURT  SHALL  AWARD  LIQUIDATED
 DAMAGES  TO  EVERY EMPLOYEE AGGRIEVED UNDER THIS SECTION, IN ADDITION TO
 ANY OTHER REMEDIES PERMITTED BY THIS SECTION.
   10. AT OR BEFORE THE COMMENCEMENT OF ANY ACTION  UNDER  THIS  SECTION,
 NOTICE  THEREOF SHALL BE SERVED UPON THE ATTORNEY GENERAL BY THE EMPLOY-
 EE.
   § 2. This act shall take effect on the sixtieth  day  after  it  shall
 have  become  a  law.  Effective  immediately,  the addition, amendment,
 and/or repeal of any rule or regulation necessary for the implementation
 of this act on  its  effective  date  are  authorized  to  be  made  and
 completed on or before such effective date.