S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3730

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              March 2, 2011
                               ___________

Introduced  by  Sens. OPPENHEIMER, DIAZ, DILAN, KRUEGER, SAMPSON -- 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:

  Section  1.  The labor law is amended by adding a new section 211-b to
read as follows:
  S 211-B. EMPLOYEE RIGHT TO REVIEW PERSONNEL RECORDS. 1.  THE  EMPLOYER
SHALL, UPON WRITTEN REQUEST FROM AN EMPLOYEE OR FORMER EMPLOYEE, PROVIDE
SUCH  EMPLOYEE,  FORMER  EMPLOYEE  SEPARATED  FROM  EMPLOYMENT WITH SUCH
EMPLOYER WITHIN THE PREVIOUS THREE YEARS, REPRESENTATIVE OF A RECOGNIZED
OR CERTIFIED EMPLOYEE ORGANIZATION OR ATTORNEY OF SUCH EMPLOYEE WITH  AN
OPPORTUNITY  TO  REVIEW  AND  COPY  THE EMPLOYEE'S PERSONNEL FILE IF THE
EMPLOYER HAS A PERSONNEL FILE FOR THAT EMPLOYEE. THE REVIEW AND  COPYING
MUST TAKE PLACE AT THE LOCATION WHERE THE PERSONNEL FILES ARE MAINTAINED
AND DURING NORMAL BUSINESS HOURS UNLESS, AT THE EMPLOYER'S DISCRETION, A
MORE CONVENIENT TIME AND LOCATION FOR THE EMPLOYEE ARE ARRANGED.
  2.  IN  EACH  CALENDAR YEAR, THE EMPLOYER SHALL PROVIDE, AT NO COST TO
THE EMPLOYEE, ONE COPY OF THE ENTIRE PERSONNEL FILE  WHEN  REQUESTED  BY
THE  EMPLOYEE  OR  FORMER  EMPLOYEE  SEPARATED FROM EMPLOYMENT WITH SUCH
EMPLOYER WITHIN THE LAST THREE YEARS AND, WHEN REQUESTED BY THE EMPLOYEE
OR FORMER EMPLOYEE SEPARATED FROM EMPLOYMENT WITHIN THE LAST THREE YEARS
WITH SUCH EMPLOYER, ONE COPY OF ALL THE MATERIAL ADDED TO THE  PERSONNEL
FILE AFTER THE COPY OF THE ENTIRE FILE WAS PROVIDED. THE COST OF COPYING
ANY  OTHER  MATERIAL REQUESTED DURING THE CALENDAR YEAR SHALL BE PAID BY
THE EMPLOYEE REQUESTING THE COPY.
  3. FOR PURPOSES OF THIS SECTION, A PERSONNEL FILE INCLUDES, BUT IS NOT
LIMITED TO, ANY FORMAL OR  INFORMAL  EMPLOYEE  EVALUATIONS  AND  REPORTS
RELATING  TO THE EMPLOYEE'S CHARACTER, CREDIT, WORK HABITS, COMPENSATION

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06132-01-1
              

S. 3730                             2

AND BENEFITS, AND NONPRIVILEGED MEDICAL RECORDS OR NURSES' STATION NOTES
RELATING TO THE EMPLOYEE. FOR THE PURPOSES OF  THIS  SECTION,  THE  TERM
"NONPRIVILEGED MEDICAL RECORDS OR NURSES' STATION NOTES" MEANS ALL THOSE
MATERIALS  THAT  HAVE  NOT  BEEN FOUND TO BE PROTECTED FROM DISCOVERY OR
DISCLOSURE IN THE COURSE OF CIVIL LITIGATION OR SUBJECT  TO  THE  HEALTH
INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA).
  4. RECORDS IN A PERSONNEL FILE MAY BE MAINTAINED IN ANY FORM INCLUDING
PAPER, MICROFICHE OR ELECTRONIC FORM. AN EMPLOYER MAINTAINING RECORDS IN
A  FORM  OTHER  THAN  PAPER SHALL HAVE AVAILABLE TO THE EMPLOYEE, FORMER
EMPLOYEE SEPARATED FROM EMPLOYMENT WITH SUCH EMPLOYER WITHIN THE  PREVI-
OUS  THREE  YEARS,  REPRESENTATIVE OF A RECOGNIZED OR CERTIFIED EMPLOYEE
ORGANIZATION OR ATTORNEY OF SUCH EMPLOYEE  THE  EQUIPMENT  NECESSARY  TO
REVIEW  AND  COPY  THE  PERSONNEL FILE. THE EMPLOYER SHALL TAKE ADEQUATE
STEPS TO ENSURE THE  INTEGRITY  AND  CONFIDENTIALITY  OF  SUCH  EMPLOYEE
RECORDS.
  5.  ANY  EMPLOYER  WHO,  FOLLOWING A REQUEST PURSUANT TO THIS SECTION,
FAILS WITHOUT GOOD CAUSE TO PROVIDE AN OPPORTUNITY FOR REVIEW AND  COPY-
ING  OF A PERSONNEL FILE, WITHIN TEN DAYS OF RECEIPT OF SUCH REQUEST, IS
SUBJECT TO A CIVIL FINE OF TWENTY-FIVE DOLLARS FOR EACH DAY SUCH FAILURE
CONTINUES, EXCEPT THAT SUCH FINE SHALL NOT EXCEED FIVE  HUNDRED  DOLLARS
PER REQUEST. AN EMPLOYEE, FORMER EMPLOYEE OR THE DEPARTMENT MAY BRING AN
ACTION  IN  A COURT OF COMPETENT JURISDICTION FOR SUCH EQUITABLE RELIEF,
INCLUDING AN INJUNCTION, AS THE COURT MAY CONSIDER NECESSARY AND PROPER.
THE EMPLOYER MAY ALSO BE REQUIRED  TO  REIMBURSE  THE  EMPLOYEE,  FORMER
EMPLOYEE  SEPARATED FROM EMPLOYMENT WITH SUCH EMPLOYER WITHIN THE PREVI-
OUS THREE YEARS OR THE DEPARTMENT FOR COSTS REASONABLY  RELATED  TO  THE
LITIGATION  INCLUDING REASONABLE ATTORNEY'S FEES, IF THE EMPLOYEE OR THE
DEPARTMENT RECEIVES A JUDGMENT IN THE EMPLOYEE'S OR DEPARTMENT'S  FAVOR,
RESPECTIVELY.
  6.  THIS  SECTION  SHALL  NOT  BE DEEMED TO DIMINISH THE RIGHTS OF ANY
EMPLOYEE PURSUANT TO A COLLECTIVE BARGAINING AGREEMENT.
  S 2. The civil service law is amended by adding a new section  153  to
read as follows:
  S  153.  EMPLOYEE  RIGHT  TO REVIEW PERSONNEL RECORDS. 1. THE EMPLOYER
SHALL, UPON WRITTEN REQUEST FROM AN EMPLOYEE OR  FORMER  EMPLOYEE  SEPA-
RATED  FROM  EMPLOYMENT  WITH  SUCH  EMPLOYER  WITHIN THE PREVIOUS THREE
YEARS, PROVIDE SUCH EMPLOYEE, FORMER EMPLOYEE SEPARATED FROM  EMPLOYMENT
WITH  SUCH EMPLOYER WITHIN THE PREVIOUS THREE YEARS, REPRESENTATIVE OF A
RECOGNIZED OR  CERTIFIED  EMPLOYEE  ORGANIZATION  OR  ATTORNEY  OF  SUCH
EMPLOYEE WITH AN OPPORTUNITY TO REVIEW AND COPY THE EMPLOYEE'S PERSONNEL
FILE  IF THE EMPLOYER HAS A PERSONNEL FILE FOR THAT EMPLOYEE. THE REVIEW
AND COPYING MUST TAKE PLACE AT THE LOCATION WHERE  THE  PERSONNEL  FILES
ARE  MAINTAINED  AND DURING NORMAL BUSINESS HOURS UNLESS, AT THE EMPLOY-
ER'S DISCRETION, A MORE CONVENIENT TIME AND LOCATION  FOR  THE  EMPLOYEE
ARE ARRANGED.
  2.  IN  EACH  CALENDAR YEAR, THE EMPLOYER SHALL PROVIDE, AT NO COST TO
THE EMPLOYEE, ONE COPY OF THE ENTIRE PERSONNEL FILE  WHEN  REQUESTED  BY
THE  EMPLOYEE  OR  FORMER  EMPLOYEE  SEPARATED FROM EMPLOYMENT WITH SUCH
EMPLOYER WITHIN THE PREVIOUS THREE YEARS  AND,  WHEN  REQUESTED  BY  THE
EMPLOYEE OR FORMER EMPLOYEE SEPARATED FROM EMPLOYMENT WITH SUCH EMPLOYER
WITHIN  THE  PREVIOUS THREE YEARS, ONE COPY OF ALL THE MATERIAL ADDED TO
THE PERSONNEL FILE AFTER THE COPY OF THE ENTIRE FILE WAS  PROVIDED.  THE
COST  OF  COPYING  ANY OTHER MATERIAL REQUESTED DURING THE CALENDAR YEAR
SHALL BE PAID BY THE EMPLOYEE REQUESTING THE COPY.
  3. FOR PURPOSES OF THIS SECTION, A PERSONNEL FILE INCLUDES, BUT IS NOT
LIMITED TO, ANY FORMAL OR  INFORMAL  EMPLOYEE  EVALUATIONS  AND  REPORTS

S. 3730                             3

RELATING  TO THE EMPLOYEE'S CHARACTER, CREDIT, WORK HABITS, COMPENSATION
AND BENEFITS, AND NONPRIVILEGED MEDICAL RECORDS OR NURSES' STATION NOTES
RELATING TO THE EMPLOYEE. FOR THE PURPOSES OF  THIS  SECTION,  THE  TERM
"NONPRIVILEGED MEDICAL RECORDS OR NURSES' STATION NOTES" MEANS ALL THOSE
MATERIALS  THAT  HAVE  NOT  BEEN FOUND TO BE PROTECTED FROM DISCOVERY OR
DISCLOSURE IN THE COURSE OF CIVIL LITIGATION OR SUBJECT  TO  THE  HEALTH
INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA).
  4.  RECORDS  IN A PERSONNEL FILE MAY BE MAINTAINED IN ANY FORM INCLUD-
ING, PAPER, MICROFICHE  OR  ELECTRONIC  FORM.  AN  EMPLOYER  MAINTAINING
RECORDS IN A FORM OTHER THAN PAPER SHALL HAVE AVAILABLE TO THE EMPLOYEE,
FORMER  EMPLOYEE  OR DULY AUTHORIZED REPRESENTATIVE THE EQUIPMENT NECES-
SARY TO REVIEW AND COPY THE PERSONNEL  FILE.  THE  EMPLOYER  SHALL  TAKE
ADEQUATE  STEPS  TO  ENSURE  THE  INTEGRITY  AND CONFIDENTIALITY OF SUCH
EMPLOYEE RECORDS.
  5. ANY EMPLOYER WHO, FOLLOWING A REQUEST  PURSUANT  TO  THIS  SECTION,
FAILS  WITHOUT GOOD CAUSE TO PROVIDE AN OPPORTUNITY FOR REVIEW AND COPY-
ING OF A PERSONNEL FILE, WITHIN TEN DAYS OF RECEIPT OF SUCH REQUEST,  IS
SUBJECT TO A CIVIL FINE OF TWENTY-FIVE DOLLARS FOR EACH DAY SUCH FAILURE
CONTINUES,  EXCEPT  THAT SUCH FINE SHALL NOT EXCEED FIVE HUNDRED DOLLARS
PER REQUEST. AN EMPLOYEE, FORMER EMPLOYEE OR THE DEPARTMENT OF LABOR MAY
BRING AN ACTION IN A COURT OF COMPETENT JURISDICTION FOR EACH SUCH EQUI-
TABLE RELIEF, INCLUDING AN INJUNCTION, AS THE COURT MAY CONSIDER  NECES-
SARY  AND  PROPER.  THE  EMPLOYER  MAY ALSO BE REQUIRED TO REIMBURSE THE
EMPLOYEE, FORMER EMPLOYEE SEPARATED FROM EMPLOYMENT WITH  SUCH  EMPLOYER
WITHIN  THE  PREVIOUS  THREE  YEARS OR THE DEPARTMENT OF LABOR FOR COSTS
REASONABLY RELATED TO THE  LITIGATION  INCLUDING  REASONABLE  ATTORNEY'S
FEES, IF THE EMPLOYEE OR THE DEPARTMENT OF LABOR RECEIVES A JUDGEMENT IN
THE EMPLOYEE'S OR SUCH DEPARTMENT'S FAVOR, RESPECTIVELY.
  6.  THIS  SECTION  SHALL  NOT  BE DEEMED TO DIMINISH THE RIGHTS OF ANY
EMPLOYEE PURSUANT TO A COLLECTIVE BARGAINING AGREEMENT.
  S 3. This act shall take effect immediately.