ROCHESTER, N.Y. (Rochester Business Journal) — New York law will soon require employers to be more transparent with regard to information contained in employee personnel files.
Beginning Nov. 8, an employee must be notified if anything deemed negative is added to a personnel file, and the employee then will have the legal right to see everything contained in that file.
But even if nothing unfavorable is added, any employee is allowed to view their own file twice a year.
Following the lead of Massachusetts, state lawmakers believe employees have the right to know what employers place in a personnel file, especially since it can impact future employment opportunities within a current company or with another employer. Gov. Kathy Hochul signed the bill on Sept. 9.
“The reason the legislature thinks this must be addressed is because of the way personnel files are used,” said Jared Cook, senior counsel in the Rochester office of Tully Rinckey PLLC. “They use your file when they make decisions about are we going to promote this person, are we going to discipline this person, are we going to give them a raise.
“If you as an employee think that there’s something in that file that is false or incorrect or unfairly puts you in a bad light, you, first, have a right to know, and second, have a right to respond to it.”
Sponsored by Sen. Andrew Gounardes (D-Brooklyn), the bill is meant to create “an open and transparent dialogue between employees and their supervisors while providing some recourse for employees to remove knowingly false or defamatory statements from their records.”
The law — which applies to any employer in New York — requires:
• Any time negative information is added to a file, the employee must be notified within 10 days;
• The employee then has the right to request, in writing, access to their personnel file and the employer must grant that request within five days.
“If you see something that you don’t agree with or think is incorrect, you can request a correction,” Cook said. “If the employee and employer can’t agree on that, then the employee has the right to submit written statements in response to that information and the employer must put that into the personnel file.
“By giving employees the right to submit this response to anything they disagree with, this at least remedies that potential imbalance.”
The law also says an employee has the right to have “knowingly false” information expunged, either through a collective bargaining agreement, other personnel procedures or through judicial process.
“That’s a little vague,” Cook said. “It’s not clear exactly what that’s going to mean in practice. I could see a court could say, ‘You have the right to sue in court,’ and if you win, that’s expunged.’
“We’ll have to see if the Department of Labor issues some regulations that clarify that, or if it gets clarified through court decisions.”
So why would there be ambiguity in the language? Cook said there are usually two reasons every detailed isn’t spelled out. One, the lawmakers didn’t consider every practical application.
“Or, maybe legislators had very different ideas and they couldn’t agree on it,” he said, “so they just picked some language that they could agree on, even though it was vague, and they’ll leave it to the DOL or the courts.”
