S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   99--A
     Cal. No. 699
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 4, 2023
                                ___________
 
 Introduced  by  Sens. GOUNARDES, ADDABBO, HOYLMAN-SIGAL, JACKSON, MYRIE,
   RAMOS, RIVERA, SALAZAR, THOMAS -- read twice and ordered printed,  and
   when  printed to be committed to the Committee on Labor -- recommitted
   to the Committee on Labor in accordance with Senate Rule 6, sec. 8  --
   reported  favorably  from  said committee, ordered to first and second
   report, ordered to a third reading,  amended  and  ordered  reprinted,
   retaining its place in the order of third reading
 
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD01556-06-4
 S. 99--A                            2
 
 THAT HAS A CONTRACTUAL AGREEMENT WITH THE EMPLOYER TO KEEP OR  SUPPLY  A
 PERSONNEL  RECORD  AS PROVIDED IN THIS SECTION. A PERSONNEL RECORD SHALL
 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
 S. 99--A                            3
 
 AGAINST SUCH EMPLOYER IN ANY ADMINISTRATIVE OR JUDICIAL PROCEEDING  SUCH
 EMPLOYER  SHALL  RETAIN  ANY  PERSONNEL RECORD REQUIRED TO BE KEPT UNDER
 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.