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Legislative Memo

Frank Kerbein
Director, Center for Human Resources
T 518.465.7511, ext. 210
www.bcnys.org

BILL:

S.2191 (Parker) / A.4836 (Titus)

Support

SUBJECT:

Requires Access to Employee Personnel Records

 

DATE:

May 2, 2017

 

This bill would amend the state labor law and civil service law and require employers to allow access to employee's personnel records, and require employers to copy or provide the equipment to copy personnel records. The Business Council opposes enactment of this legislation.

Current Practice

For years, it has been common practice by private sector employers to give employees access to their individual personnel files and in many cases to copy sections when needed. A state-wide mandate is not necessary.  Most personnel file contents, as defined in this bill, are already available to employees in the course of their day-to-day work.

As for the disclosure of “nonprivileged medical records or nurses' station notes," we respectfully suggest that the hundreds of thousands small businesses in New York State have neither the time nor the resources to determine “those materials that have not been found to be protected from discovery or disclosure in the course of civil litigation or subject to HIPAA."

There certainly are times when employers may include notes, reports or comments about an employee's work or performance in the personnel file. This is a normal human resource related activity and confidentiality of this information is not an unreasonable expectation. Besides, even this information is ultimately available through normal subpoena processes.

Availability to Others

The employer has an obligation to safeguard the information in each personnel file. As such, limiting access is an employer responsibility and a reasonable action.

Regarding access by representatives of a recognized or certified employee organization, it is simply not necessary. Collective bargaining representation brings no special right to access private employer documents and files. Collective bargaining representatives already have complete compensation and benefit information through the collective bargaining agreement. They also have all the information that they would need about the employee's character, credit and work habits to properly provide collective bargaining representation. If there are performance related or other issues between an employer and employee, most collective bargaining agreements contain a process requiring the employer to disclose facts and information for any action being taken and then provides the employee and representative a process for objecting, the grievance procedure.

Regarding access by an attorney of an employee, much of the personnel file information is already available through payroll and benefits information and performance reports already in the employee's possession. In the event that an accusation is made that the employer has violated a state or federal law, the normal subpoena process makes available those additional notes, reports or comments about an employee's work or performance that may be in the personnel file but not in the employee's possession.

Copy Every Personnel File Every Year

This bill, after allowing review of the personnel files by employees, former employees, collective bargaining representatives and attorneys and allowing the copying of the contents by them would also require employers to copy at no charge to the employee the full,  complete personnel file every year, when requested. Then it also requires, when requested, a copy of the material added to the personnel file after the complete copy of the personnel file was provided.

This provision alone would provide a costly drain of time, resources and expense and give employees, groups of employees and especially unions, who may have a disagreement with the employer, a guaranteed source of legal harassment and intimidation.

For these reasons, The Business Council opposes this legislation and respectfully urges that it not be enacted.