New York Mandates Employee Access to Personnel Records

Effective November 8, the law gives current and former employees broad rights to access, review, and challenge personnel records and imposes new deadlines, retention obligations, fines, and anti-retaliation protections.

Background

Governor Hochul signed Senate Bill S.3460, with Assembly companion A.2107, taking effect on November 8. New York joins a growing number of states that provide employees with a statutory right to access and review personnel files.

Key Provisions

1. Who Is Covered: The law will apply to current and former employees and to public and private New York employers, including their agents.

2. What Is a “Personnel Record”: The law defines a “personnel record” as a record 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, promotion, transfer, additional compensation or disciplinary action.” The law defines a personnel record to include: (1) name, address, and date of birth; (2) job title and description; (3) rate of pay and any other compensation paid to the employee; (4) start date; (5) job application and resumés; (6) employee performance evaluations and evaluation documents; (7) written warnings of substandard performance; (8) copies of dated termination notices; (9) probationary periods; (10) waivers signed by the employee; and (11) any other documents related to disciplinary action. The law excludes information of a personal nature about a person other than the employee if the disclosure constitutes an unwarranted invasion of the other person’s privacy.

3. Employee Access: Current and former employees may review their records up to twice per calendar year at no cost to them. Employers must provide the records within five business days of a written request.

4. Negative Information Notifications: Employers must notify an employee within 10 days after adding negative information to the employee’s record and must provide a free copy of the record within five business days of a written request. A review triggered by notice of negative information will not count toward the yearly access limit.

5. Document Retention Requirement: The Personnel Records Access law requires employers to retain complete personnel records from the date of employment through three years after termination.

6. Employee’s Right to Challenge: Employees may challenge record contents by seeking correction or adding a written rebuttal; any such rebuttal must accompany disputed information sent to a third party. Where the employer knew or should have known that information placed in the record was false, the employee may seek expungement through applicable personnel procedures, a collective bargaining agreement, or the courts.

7. No Retaliation: The law bars retaliation, specifically including threats to contact immigration authorities, for exercising rights granted under this law.

8. Enforcement: The New York State Attorney General will enforce this provision and may levy fines of $500 to $2,500 for employer violations. A collective bargaining agreement that provides substantially similar access to personnel records will remain controlling.

Employer Impact and Next Steps

1. Tight response timelines. Employers will need to establish clear protocols, designated owners, and templates to respond to access requests within five business days and to provide notice of negative information within 10 days.

2. Retention and vendor coordination. Employers should audit current personnel files and identify where records are stored, update retention and document-management policies, and coordinate with third-party vendors (including payroll providers, professional employer organizations, staffing agencies, and HR platforms) to ensure complete records can be located and produced on time. Records must be preserved from the date of employment through at least three years after termination, subject to other state and federal laws that may require longer retention periods.

3. Increased dispute and retaliation risk. More frequent employee reviews may lead to challenges to performance and disciplinary records. Employers should train HR staff and managers on disputes, rebuttal statements, anti-retaliation protections, and coordination with applicable collective bargaining agreements, and should monitor legislative and regulatory guidance.

We will continue to monitor legislative and regulatory developments and provide updates as additional guidance becomes available. For compliance assistance, please contact your usual firm representative or any member of our Labor, Employment & OSHA team.