New York has joined other states that provide employees with access to their personnel files. Previously, New York employers could provide access as the company chose. The new law requiring access, Labor Law § 210-b, covers all New York employers. It goes into effect on November 8, 2026, although it may be subject to subsequent modifications by the state legislature.
What is a “personnel record”?
The new law broadly defines “personnel record” to include a record that “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.”
Companies need to be mindful of every location where personnel information could be stored since all of those documents could comprise an employee’s personnel record.
The definition of personnel record includes those records maintained by third parties under a contractual agreement with the employer, which would include software platforms (such as Human Resources Information Systems) that house personnel documents and information.
Although personnel files could include other information, the law specifically identifies the following as required to be maintained in the personnel record: (1) name, address, date of birth, job title, and job description; (2) rate of pay and any other compensation paid; (3) starting date of employment; (4) job application, resumes, or other employment inquiry forms submitted in response to an advertisement; (5) performance evaluations; (6) written warnings of substandard performance; (7) lists of probationary periods; (8) waivers signed by the employee; and (9) copies of dated termination notices.
When can personnel files be obtained by employees?
Employees may submit a written request to obtain a copy of their personnel files twice a calendar year. The company must then provide a copy of their file within five business days of the request at no cost to the individual. Former employees may also request their file, presumably for as long as an employer is required to maintain that employee’s file.
This means plaintiffs’ lawyers can have former employees request their file – and it will have to be provided in five days. Previously, New York employers could withhold the file until discovery in a litigation. Now, it can be obtained even absent a litigation. What is included in a personnel file is going to matter more than ever.
What else does an employer have to do?
Employers are also obliged to notify an employee within ten days of any information being added to that employee’s personnel file that is, has been, or may be used, to negatively affect the employee's qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action. The law does not specify whether that is business days or calendar days, but the default rule in New York is to use calendar days.
The law does not address negative material added to a personnel file prior to November 8. We recommend reviewing personnel files to ensure that any negative information contained in them notes when it was added. Going forward, in addition to being dated when it was written, employers are now going to need to track the date negative information is added to a personnel file.
A request to obtain a copy of any negative information the employee is advised has been placed in their file does not count as one of the two annually permitted copies of their file.
Managers should be mindful to draft employee performance and related documentation succinctly including the date, the event, and any impact on the business, without editorializing. Keep in mind that the employee may read it one day.
When Governor Hochul signed the legislation, she indicated that a number of vague provisions need to be clarified by the legislature. Specifically, she noted that the law should be modified to clarify that: 1. employers won't have to create files or produce records they don't already keep; and 2. covered records will be narrowed to those actually used in hiring, retention, promotion, transfer, pay or discipline decisions. Because the legislature won’t take up amendments until its 2027 session, the law takes effect November 8 as written.
We often recommend that managers keep a running log of performance observations, both positive and negative, to help decide whether discipline or other steps are warranted. Read literally, the new law could treat that log as part of the personnel record, which would require notifying the employee within ten days of each negative entry. That is not a practical way to manage, and the Governor's approval memo indicates the legislature will narrow covered records to those actually used in employment decisions. Until then, managers should keep their logs factual and professional. For example, a log entry could read, “Sally’s arrival time is 9:00 am; she arrived at 9:20 on October 14, 2026 without having called in ahead of time.” Managers should also share negative feedback with employees promptly as part of ordinary supervision. Once a log entry is used to support discipline, it should be placed in the personnel file and the employee notified.
Addressing employee disagreements
If an employee disagrees with any information in their personnel file, the employee and the company may agree to remove or correct the disputed information. If an agreement is not reached, the employee may submit a written statement explaining their position which becomes part of the employee's personnel file. If the file is relayed to any third party for any reason, the information the employee added must be included.
Remedies and other provisions
The law provides remedies for employees if an employer puts information into a personnel record that the employer knew or should have known was false, and allows for the false information to be expunged.
Complete personnel records must be retained during an employee's employment without deleting or expunging any information unless agreed to with the employee and then retained for three years after the end of employment, however other laws may require a longer retention period.
The law does not require employers to have a personnel file access policy. However, a best practice is to include one in the company employee handbook.
The law prohibits employers from discriminating or retaliating against employees who exercise their rights under this law. The attorney general may bring enforcement actions with fines of $500 to $2,500 per violation.
Next steps for employers
The following are actions New York employers should take now to get ready to comply with this new law:
- Audit what is already in current and former employees’ files. Anything not written professionally with just the facts, should be sent back to the manger to revise as it otherwise becomes producible within five days starting November 8.
- Review where personnel file documents are maintained and be sure that all places are identified.
- Identify who has access to personnel file documents. Be sure HR is advised of negative information.
- Issue a policy to employees so they have notice of their rights under the new law, to the extent the company wishes to do so (recommended but not required).
- Ensure protocols are established to both respond to employee written requests for file access and to advise employees when negative information is added to their files.
- Ensure personnel files are being retained for the appropriate period of time (keeping in mind that other record retention laws may apply).
- Train managers to document performance factually and without editorializing.
Please reach out to your Greenwald Doherty lawyer who can help ensure that your policies and practices are up to date and legally compliant.
