S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  1959--A
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 23, 2023
                                ___________
 
 Introduced  by  M.  of  A.  GONZALEZ-ROJAS,  JACKSON, DINOWITZ, EPSTEIN,
   MAMDANI, GOODELL, SILLITTI, GLICK -- read once  and  referred  to  the
   Committee on Labor -- recommitted to the Committee on Labor in accord-
   ance  with  Assembly  Rule  3,  sec.  2  -- committee discharged, bill
   amended, ordered reprinted as amended and recommitted to said  commit-
   tee
 
 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.
                                                            LBD01556-07-4
              

 A. 1959--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,  AT  NO
 COST TO THE EMPLOYEE, WITHIN FIVE BUSINESS DAYS OF SUBMISSION OF A WRIT-
 TEN  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 OCCASIONS IN A CALENDAR YEAR; PROVIDED, HOWEV-
 ER,  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 SUCH EMPLOYEE'S 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. 1959--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 SUPERSEDE  THE  TERMS
 OF  A  COLLECTIVE  BARGAINING  AGREEMENT,  PROVIDED,  HOWEVER, THAT SUCH
 AGREEMENT PROVIDES AT LEAST SUBSTANTIALLY SIMILAR ACCESS BY AN  EMPLOYEE
 TO THEIR PERSONNEL RECORDS AS THAT PROVIDED BY THIS SECTION.
   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 SUCH EMPLOYEE'S 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 IMMI-
 GRATION AUTHORITIES 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 SUCH EMPLOYEE FOR THE  EXERCISE  OF  SUCH  EMPLOYEE'S
 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.