NY State Senate Bill 2019-S5044

Archive: Last Bill Status - In Senate Committee Labor Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2020	referred to labor
Apr 04, 2019	referred to labor

co-Sponsors

2019-S5044 (ACTIVE) - Details

Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Add §211-b, Lab L; add §153, Civ Serv L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S1629
2011-2012: S3730
2013-2014: S4134
2015-2016: S2578
2017-2018: S2191
2021-2022: S5647
2023-2024: S7946

2019-S5044 (ACTIVE) - Summary

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

2019-S5044 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S5044

SPONSOR: PARKER
 
TITLE OF BILL:  An act to amend the labor law and the civil service
law, in relation to employees' right to review personnel records

 
PURPOSE OR GENERAL IDEA OF BILL:

This bill would amend the labor and civil service laws to provide a
means by which public and private employees are granted access to their
personnel file.

 
SUMMARY OF SPECIFIC PROVISIONS:

§ 1 of this bill amends the labor law by adding section 211-b. This
section goes on to require employers to provide an employee, Attorney of
the employee or a representative of a recognized or certified employee
organization, the opportunity to review and copy the employee's person-
nel file. The employee must submit a written request for this right to
be exercised.

This same requirement applies for ex employees and is only applicable if
a personnel file exists. Former employee's access to personnel records
is limited to those who have left the employment within the last three
years. The review and copying must take place at the location were 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.

The records in the personnel file may be maintained in any form as long
as they allow for their review and copying. If the employer maintains
these records on material other than paper they should maintain the
equipment necessary to review and copy these files. The employer should
take adequate steps to ensure integrity and confidentiality of such
employee records.

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. Additionally, the employer shall provide
one copy of all 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.

If an employer fails to honor a request to review or copy personnel
files within ten days of receiving that request they will be subject to
a civil fine of twenty-five dollars for each day such failure continues.
Fines 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 such equitable relief, including an
injunction, as the court may consider necessary and proper. The employer
may also be forced to pay the legal fees for the requesting employee if
the employee or department receives a judgement in their favor.

In section 211-b(e) the reference to medical records specifically refer-
ences those medical records not subject to HIPAA unless appropriate
release form has been presented with request for personnel records. § 2
of this bill amends the civil service law by adding a new section 153.
This section goes on to require public employers to provide the same
personnel file access as private employers, as detailed above. This
section has the same penalties and procedural recourses as section 211-b
of the labor law, as detailed above.

 
JUSTIFICATION:

Employees should have access to their personnel for numerous reasons.
In a professional atmosphere, full disclosure of grievances are the only
ways by which they may be fully understood and remedied if possible.
This open process helps to make the workforce more efficient by breaking
down barriers to communication.

In the event of an unscrupulous employer or supervisor taking advantage
of their position of power this legislation is very useful in giving the
employee the opportunity to defend their name and their work ethic if
need be.

If an employee has a problematic relationship with a supervisor, that
employee is entitled to know what is being reported about them in an
official capacity. An employee may not ever be made aware of pending
problems if they are not permitted this right to review their personnel
file. If the employee has issues related to productivity or discipline
this is a manner by which these concerns can be addressed. In the event
of an employee's dismissal access to their personnel files may help them
find the reasoning behind their dismissal and perhaps may lead to
addressing a misunderstanding.

 
PRIOR LEGISLATIVE HISTORY:

2017-18: S2191- REFERRED TO LABOR
2015-2016: S.2578 - Referred to Labor
2013-2014: S.4134 - Referred to Labor
2011-2012: S.3730/A.2314 - Referred to Codes/ referred to Labor

 
FISCAL IMPLICATIONS:

Minimal

 
EFFECTIVE DATE:
This act shall take effect immediately.

2019-S5044 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5044
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               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:
 
   Section  1.  The labor law is amended by adding a new section 211-b to
 read as follows:
   § 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
 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
 
 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.
   §  2.  The civil service law is amended by adding a new section 153 to
 read as follows:
   § 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
 RELATING TO THE EMPLOYEE'S CHARACTER, CREDIT, WORK HABITS,  COMPENSATION

 S. 5044                             3
 
 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.
   § 3. This act shall take effect immediately.

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Senate Bill S5044

Sponsored By

Archive: Last Bill Status - In Senate Committee Labor Committee

co-Sponsors

2019-S5044 (ACTIVE) - Details

2019-S5044 (ACTIVE) - Summary

2019-S5044 (ACTIVE) - Sponsor Memo

2019-S5044 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S5044

Share this bill

Sponsored By

Kevin S. Parker

Archive: Last Bill Status - In Senate Committee Labor Committee

co-Sponsors

Luis R. Sepúlveda

2019-S5044 (ACTIVE) - Details

2019-S5044 (ACTIVE) - Summary

2019-S5044 (ACTIVE) - Sponsor Memo

2019-S5044 (ACTIVE) - Bill Text download pdf

Comments