Key Changes if S3460 Is Enacted

If Governor Hochul signs S3460 into law, employers will have 60 days following enactment to implement compliant policies and procedures.

A. Mandatory Employee Access to Personnel Records

If signed, the bill would amend the New York Labor Law by adding a new Section 210-b to require employers to provide a requesting employee with access to the employee’s personnel record within five business days of the employee’s written request, at no cost to the employee.

A “personnel record” is defined by S3460 as “a record kept by an employer that identifies 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 qualifications for employment.” The bill specifically notes that this includes, but is not limited to:

• 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 the employer’s advertisement by the employee.
• All employee performance evaluations, including but not limited to, employee evaluation documents.
• Written warnings of substandard performance.
• Lists of probationary periods.
• Waivers signed by the employee.
• Copies of dated termination notices.
• Any other documents relating to disciplinary action regarding the employee.

Employers would be required to provide copies of a requesting employee’s personnel record on up to two occasions per year, except where the request arises from notice that negative information has been added to the record, as discussed below. Such reviews do not count towards an employee’s annual two-request limit.

B. Employees Must Receive Notice of Negative Information Placed in a Personnel Record and Must Also Be Permitted to Rebut Such Information in Writing

One of the most significant changes proposed by the bill is the new requirement that employers notify employees when information has been placed in a personnel record that “has been used or may be used, to negatively affect the employee’s qualifications for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action.”

If an employer adds such information to an employee’s personnel record, the employer will be required to notify that employee within 10 days of the information’s addition—assuming that Governor Hochul signs the bill into law. At this point, it is presumed that the notification must occur within 10 calendar days as opposed to business days. It is unclear what form that notice must take, if any.

If, after receiving such notice, an employee requests in writing to review the negative personnel record, the employer is obligated to provide a copy to the employee within five business days. This request would be excluded from the bill’s two-request annual cap.

Most significantly, employees must also be afforded the opportunity to submit a written statement explaining the employee’s position—an apparent means to counter or rebut the negative information. Under this proposed law, the employer must also include the employee’s written rebuttal in the personnel record. Moreover, employers must include the employee’s statement whenever such negative information is transmitted to a third party.

C. Potential Penalties and Remedies

The Attorney General could bring an action, at their discretion, against violators of the bill and subject them to a fine between $500 and $2,500. Individual employees who face illegal discrimination or retaliation for exercising their rights under the amended statute may also bring a claim. If an employer places information in a personnel file that the employer “knew or should have known to be false,” the employee can seek to have the information expunged through a judicial action for injunctive relief (i.e., a lawsuit), “other personnel procedures,” or an applicable collective bargaining agreement.