STATE OF NEW YORK
       ________________________________________________________________________
 
                                         2373
 
                              2001-2002 Regular Sessions
 
                   IN ASSEMBLY
 
                                   January 22, 2001
                                      ___________
 
       Introduced  by  M. of A. TOCCI, MAYERSOHN -- Multi-Sponsored by -- M. of
         A. ABBATE, BOYLAND, HOOPER -- read once and referred to the  Committee
         on Labor
 
       AN  ACT  to amend the labor law and the civil practice law and rules, in
         relation to employee personnel records
 
         The People of the State of New York, represented in Senate and  Assem-
       bly, do enact as follows:
 
    1    Section  1.  The  labor  law is amended by adding a new article 7-A to
    2  read as follows:
    3                                  ARTICLE 7-A
    4                RIGHTS RESPECTING EMPLOYEE PERSONNEL RECORDS
    5  Section 219-a. Definitions.
    6          219-b. Notification and review.
    7          219-c. Corrections.
    8          219-d. Employment related investigations of an alleged  criminal
    9                   activity.
   10          219-e. Civil remedies.
   11          219-f. Severability.
   12    §  219-a.  Definitions.  As  used in this article, the following terms
   13  shall have the following meanings:
   14    1.  The term "employee" means a person currently or formerly  employed
   15  by an employer.
   16    2.    The  term  "employer"  means a person, corporation, partnership,
   17  labor organization, unincorporated  association,  or  any  other  legal,
   18  business  or  commercial  entity that has twenty-five or more employees.
   19  Such term also includes an agent having authority over personnel records
   20  of an employer. Such term shall not include an agency of the  state,  as
   21  defined by section ninety-two of the public officers law, the judiciary,
   22  the  state  legislature,  any  unit  of  local  government or offices of
   23  district attorneys.
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD06883-01-1

       A. 2373                             2
 
    1    3.  The term "personnel record" means a record  kept  by  an  employer
    2  containing  an  employee's  name or other identifying designation for an
    3  employee which is or has been used or may affect or be used relative  to
    4  that  employee's  qualifications  for employment, transfer, compensation
    5  adjustment  or  disciplinary  action.   Such term shall include a record
    6  which is in the employer's possession, or in the possession of a person,
    7  corporation, partnership, or other association which has  a  contractual
    8  agreement with the employer. Such term shall not include: (a) records of
    9  grievance  investigations  which  are kept separately and are the mental
   10  impressions or work product of the employer's investigators; (b)  infor-
   11  mation  of  a  personal nature about a person other than the employee if
   12  the disclosure of the information would constitute an unwarranted  inva-
   13  sion  of  the  other  person's  privacy; (c) information relating to the
   14  employer's staff planning  with  respect  to  more  than  one  employee,
   15  including  compensation  adjustment, management bonus plans, promotions,
   16  and job assignments; (d) information that is kept separately from  other
   17  records and that relates to an investigation by the employer pursuant to
   18  section  two  hundred  nineteen-d  of this article; (e) employer payroll
   19  records; and (f)  confidential  preemployment  references  given  to  an
   20  employer.
   21    §  219-b.  Notification and review. 1. All employers shall notify each
   22  of their employees of the existence of  personnel  records  and  of  the
   23  employee's rights under this article with respect to personnel records.
   24    2.  An  employer shall, upon written request from an employee, provide
   25  that employee periodically with an opportunity  to  review  his  or  her
   26  personnel  record,  if  the  employer  has  a  personnel record for that
   27  employee, but at least two times annually  or as otherwise  provided  by
   28  law  or  collective bargaining agreement or whenever disciplinary action
   29  is instituted against that employee. The review shall take place at,  or
   30  reasonably  near,  the employee's place of employment, and during normal
   31  business hours, provided, however, that: (a) the employer may allow  the
   32  review  to  take  place  at  another time or location that would be more
   33  convenient to the employee; and (b) if a review during  normal  business
   34  hours  would  require  the employee to take time off from work with that
   35  employer, the employer shall provide other reasonable time for review.
   36    3. After the review provided in subdivision two of  this  section,  an
   37  employee  may  obtain  a copy of any portion of the personnel record. An
   38  employer may charge a fee for providing a copy of information  contained
   39  in  the personnel record. The fee shall be limited to the actual cost of
   40  duplicating the information, and where required or requested, of mailing
   41  a copy of the information to the employee.
   42    § 219-c. Corrections. If an employee disagrees  with  any  information
   43  contained  within  the  personnel record of such employee, that employee
   44  may request correction of  the  information  by  the  employer.  If  the
   45  employer  refuses  to  make  the  requested correction, the employee may
   46  submit a written statement explaining his or her position concerning the
   47  disputed information.  Such a statement shall not exceed the  length  of
   48  the disputed information or two pages, whichever is greater. Where prac-
   49  tical, the employee's statement shall be attached to the disputed infor-
   50  mation  and  shall remain attached thereto at all times. At a minimum, a
   51  notation of the existence of such statement of dispute  shall  be  made.
   52  Such  statement shall thereby become a part of such employee's personnel
   53  record for as long as the record retains the  disputed  information.  At
   54  any  time  that  such disputed information is disclosed by the employer,
   55  the employee's statement shall also be disclosed in the same manner  and
   56  to the same extent.

       A. 2373                             3
 
    1    §  219-d.  Employment  related  investigations  of an alleged criminal
    2  activity. If an employer has reasonable cause to believe that an employ-
    3  ee is engaged in criminal activity which will result in loss  or  damage
    4  to  the  employer's  property  or  disruption of the employer's business
    5  operation, and the employer begins an investigation thereof, the employ-
    6  er  may maintain a separate file of information relating to the investi-
    7  gation, the contents of which shall not be subject to the provisions  of
    8  sections two hundred nineteen-b and two hundred nineteen-c of this arti-
    9  cle.  The employer shall not disclose the contents of such separate file
   10  to a third party other than to a governmental unit or component thereof,
   11  which performs as one of its principal functions any activity pertaining
   12  to the enforcement of criminal laws. Upon  completion  of  the  investi-
   13  gation,  but  in  no event later than two years after the opening of the
   14  separate file relating to such  investigation,  the  employee  shall  be
   15  notified  that an investigation of alleged criminal activity has been or
   16  is being conducted. If upon completion of such investigation  either  no
   17  disciplinary  action  is taken against the employee or the matter is not
   18  referred to a governmental unit for possible prosecution, then the sepa-
   19  rate file relating to the investigation and all material contained ther-
   20  ein, along with all copies thereof, shall  be  destroyed  within  thirty
   21  days  of  such  completion. Any employee file released to a governmental
   22  unit or component thereof, which performs as one of its principal  func-
   23  tions any activity pertaining to the enforcement of criminal laws, shall
   24  be  subject  to  disclosure pursuant to article two hundred forty of the
   25  criminal procedure law, or may be obtained by  issuance  of  a  subpoena
   26  pursuant to the provisions of article six hundred ten of such law.
   27    §  219-e. Civil remedies. 1. An employee may bring a civil action in a
   28  court of competent jurisdiction against any employer or persons  alleged
   29  to  have  violated the provisions of this article.  The court shall have
   30  jurisdiction to restrain violations of this article  and  to  order  all
   31  appropriate  relief,  including  an amount equal to actual damages, plus
   32  costs and reasonable attorney's fees. At or before the  commencement  of
   33  any  action  under this section, notice thereof shall be served upon the
   34  attorney general by the employee.
   35    2. An employee may maintain an action under this section  as  a  class
   36  action  pursuant to the provisions of article nine of the civil practice
   37  law and rules.
   38    § 219-f. Severability. If any provision of this article or the  appli-
   39  cation  thereof  to  any person or circumstance is adjudged invalid by a
   40  court of competent jurisdiction,  such  judgment  shall  not  affect  or
   41  impair  the  validity  of  the  other  provisions of this article or the
   42  application thereof to other persons and circumstances.
   43    § 2. The civil practice law and rules  is  amended  by  adding  a  new
   44  section 2306-a to read as follows:
   45    §  2306-a.  Personnel  data records; time requirements; standing.  (a)
   46  Personnel data records.  Any subpoena duces tecum, except when served as
   47  an incident to an on-going criminal investigation or pursuant to article
   48  six hundred ten of the criminal procedure law  or  when  served  by  the
   49  employee  or  his  successors,  served  on  an  employer  requiring  the
   50  production of a personnel record shall not  require  the  production  of
   51  such  record on a return date which is earlier than forty-eight hours or
   52  two business days next after the service thereof.
   53    (b) Notice to data subject. Within three business days of the  service
   54  of  such  a subpoena, the employer shall mail by certified or registered
   55  mail, return receipt requested, a copy of such subpoena to the  employee
   56  at his or her last known address.

       A. 2373                             4
 
    1    (c) Standing. Any employee shall be entitled to proceed as provided in
    2  this  article  to request the withdrawal or modification of the subpoena
    3  or to move to quash, fix conditions or modify and to receive such relief
    4  as the interests of justice require.
    5    §  3.  This  act shall take effect on the ninetieth day after it shall
    6  have become a law.

 
BILL NUMBER: A2373
 
SPONSOR: Tocci (MS)

 
TITLE OF BILL:  An act to amend the labor law and the civil practice
law and rules, in relation to employee personnel records
 
 
PURPOSE OR GENERAL IDEA OF BILL:
This bill would protect the privacy of employees by limiting access to
their personnel record files and would ensure the accuracy of informa-
tion contained in such personnel files.
 
SUMMARY OF SPECIFIC PROVISIONS:
This bill adds a new article 7-A to the Labor Law, entitled:  Rights
Respecting Employee Personnel Records.  Specifically, this article
provides that:
-An employer shall maintain only records that are relevant and necessary
to accomplish the terms of employment of the employee.
-An employer must provide his/her employee, upon the employee's written
request with an opportunity to review and copy his/her record.
-If the employee disputes the accuracy information contained in the
record, he/she may request that the employer correct the disputed infor-
mation.  If the employer refuses, the employee may submit a written
statement explaining his/her position concerning the disputed informa-
tion, which then becomes part of the personnel record.
-Whenever disciplinary information contained in the personnel record is
disclosed to a third party, the employee must be given written notice
thereof prior to or at the time of disclosure the employer may dispense
with this notice if disclosure is ordered in a legal action or arbi-
tration, requested by a government agency as a result of a claim or
complaint made by the employee or undertaken pursuant to the employee's
written waiver.
-The employer shall keep a record of each disclosure of information in
the personnel record, so long as the personnel record is retained.
-An employer, having probable cause to believe that an employee is
engaged in criminal activity, who institutes an investigation thereof
may maintain a separate investigation file not subject to the provisions
of the Article; however, the contents of such file could be released
only to a law enforcement agency or the employee's defense counsel.
-The Attorney General is authorized to apply for an order compelling
compliance with the provisions of this article.  An employee who has
been injured as a result of any violation of this article may bring an
action to recover damages.  The employer may sue to enjoin any attempt
by an employee to rights under this article in an unreasonable, disrup-
tive or abusive manner.
The CPLR is also amended by adding a new section 2306-a to require that
any subpoena duces tecum requiring the production of protected employee
records may not be returnable in less than two business days.  An
employee, or other data subject, must receive notice of the subpoena,
and has standing to challenge same.
 
JUSTIFICATION:
Currently, personnel record information may be disclosed at the employ-
er's discretion and without the employee's knowledge.  Disclosure of
inaccurate, irrelevant or damaging information on an employee may result
in the unjust denial of credit or subsequent employment, thereby severe-
ly damaging an employee's livelihood or lifestyle.  This bill, by
permitting an employee to view his/her personnel record and submit writ-
ten statements of correction, ensures the accuracy of information
contained therein.
Moreover, by allowing an employee the right to inspect and comment on
his/her personnel record, the employer may find it more difficult to
compile and include in that record personal information that does not
directly pertain to the individual's suitability for satisfactory job
performance. In this respect the proposed statute buttresses the notion
that all aspects of an employee's private life not clearly affecting
work performance should remain private and outside the domain of the
employer's information files.
Maintaining accurate and reliable personnel information clearly benefits
not only the employee but the employer as well, since the latter often
relies on information contained in the records to make important manage-
ment and personnel decisions.
Similar protection of personnel records is provided to employees of
federal government by the privacy act of 1974.
 
FISCAL IMPLICATIONS:
None
 
EFFECTIVE DATE:
This act shall take effect on the 90th day after it shall have become a
law.