[First Reprint]

ASSEMBLY, No. 2124

STATE OF NEW JERSEY

211th LEGISLATURE

INTRODUCED FEBRUARY 9, 2004

Sponsored by:

Assemblyman REED GUSCIORA

District 15 (Mercer)

SYNOPSIS

    Concerns employee personnel files.

CURRENT VERSION OF TEXT

    As reported by the Assembly Labor Committee on February 19, 2004, with amendments.

An Act providing for employee access to personnel files and supplementing Title 34 of the Revised Statutes.

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

    1. As used in this act:

    "Commissioner" means the Commissioner of Labor.

    "Employee" means an individual who performs services for, and under the control and direction of, an employer for wages or other remuneration.

    "Employer" means: an individual, partnership, association, corporation or other person who engages the services of an employee and who pays the employee wages or other compensation; an agent of the employer; or a person or business entity having a contractual agreement with the employer to obtain, maintain or otherwise manage personal data concerning the employer's employees. The term "employer" shall apply to private employers but not to the State, its political subdivisions and any boards, commissions, schools, institutions or authorities created by the State or its political subdivisions.

    "Personnel file" means the information regarding an employee kept by or for an employer, including, but not limited to, formal evaluations, reports regarding the employee's character, work ¹[and credit]¹ history, and documents or other information relevant to the employee's pay, benefits, work qualifications, hiring, promotion, changes in compensation, transfer, termination or other discipline, but excluding personal information regarding the planning of future employer operations referring to more than one employee, letters of reference for which the employee has given written consent to be kept confidential, and information regarding a ¹[criminal] pending or ongoing¹ investigation which the employer elects to keep in a separate file pursuant to the provisions of section 3 of this act.

    2. a. An employer shall permit an employee or an attorney ¹or union representative¹ authorized by the employee to review all information in the employee's personnel file. The employer shall, not more than 14 business days following a written request by the employee, make the information available to the employee¹, union representative¹ or attorney during work hours at or near the facility where the employee works and provide the employee with copies of any of the information requested by the employee.

    b. The employer shall maintain the personnel file of an employee for a period of not less than 12 months following any termination of the employment of that employee. During that period, the employer shall, not more than 14 business days following a written request by the former employee, make the information available to the former employee during the business hours at or near the former facility where the employee worked and provide the former employee with copies of any of the information requested by the employee.

    The employer may charge the employee or former employee for the actual cost to the employer of copying information required pursuant to this section.

    3. An employer may maintain a separate file for information related to any ¹[criminal] pending or ongoing¹ investigation of the employee, provided that nothing in this act shall be construed as impairing, delaying or reducing an employee's rights under any other law, regulation or rule to obtain information from the employer or any files of the employer, including any separate file maintained pursuant to this section, in discovery proceedings in connection with a court or administrative agency action.

    4. If an employee believes that any information in the employee's personnel file is inaccurate or misleading, the employee may request that the employer remove or correct the information and, if the employer does not remove the information or correct it to the satisfaction of the employee, submit a written statement explaining the employee's position regarding the disputed information.

    The written statement submitted by the employee shall be included in any disclosure by the employer of the disputed information. The inclusion of the employee statement with the information without any additional statement by the employer shall not imply or create any presumption of agreement by the employer with the statement's contents.

    5. a. An employer shall not disclose information¹[, other than information which is permitted to be disclosed pursuant to subsection b. of this section,]¹ from the personnel file of an individual who is an employee or former employee of the employer to any person, unless the disclosure is ¹[made]¹:

    (1) ¹[To] Made to¹ officers or employees of the employer who have a legitimate need for the information in the performance of their duties;

    (2) ¹[To] Made to¹ a law enforcement agency in connection with a criminal investigation or prosecution;

    (3) ¹[To] Made to¹ any court or other government agency to which the employer is required by law to disclose the information;

    (4) ¹[Pursuant] Made pursuant¹ to any order of a court of competent jurisdiction;

    (5) ¹[Pursuant] Made pursuant¹ to a lawful subpoena; ¹[or]¹

    (6) ¹[With] Made with¹ the prior written authorization of the individual¹[.

    The employer shall notify the individual whenever information regarding the individual is disclosed, including information disclosed with the prior written authorization of the individual but not including information which is permitted to be disclosed pursuant to paragraphs (1), (2) or (3) of this subsection or subsection b. of this section, and the notification shall include the identity of the person to whom the information is disclosed.

    b. The restrictions on the disclosure of information provided for in subsection a. of this section shall not apply to the following information about the individual:

    (1) Information which is provided to another employer with whom the individual is seeking employment regarding the individual's name, title, compensation, period of employment and reason for, or circumstances of, separation of the individual from employment;

    (2) Information regarding the qualifications or job description of the position which the individual holds or held;

    (3) Any];

    (7) A disclosure of¹ records which are required by law to be made public; ¹[and

    (4) Any] (8) A disclosure of¹ information made available pursuant to the provisions of section 7 of P.L. 2001, c.326 (C.34:15-128.3)¹: or

    (9) A disclosure of information provided to a prospective employer of a current or former employee upon request of the prospective employer or upon request of the current or former employee about the current or former employee's job history or job performance, including information about the suitability of the employee for re-employment, the employee's skills, abilities, and traits as they may relate to suitability for future employment; and, in the case of a former employee, the reason for the employee's separation¹.

    ¹[c.] b.¹ No employer shall require an employee or prospective employee to authorize the disclosure of information from a personnel file.

    ¹c. A former or current employer, or any employee, agent or other representative authorized by the employer, including a job placement service, who, in good faith pursuant to a request of a prospective employer or the employee, discloses information pursuant to paragraph (9) of subsection a. of this section shall be immune from civil liability and shall not be liable in civil damages for the disclosure or any consequences of the disclosure. This immunity shall not apply when a claimant shows by clear and convincing evidence that the information disclosed by the employer was knowingly false or the employer acted with malicious intent or the employer violated any civil right of the former or current employee protected by federal or State law.¹

    6. An employer who willfully violates a provision of this act shall be guilty of a disorderly persons offense and shall, upon conviction for a first violation, be punished by a fine of not less than $100 nor more than $1,000 or by imprisonment for not less than 10 nor more than 90 days or by both the fine and imprisonment and, upon conviction for a second or subsequent violation, be punished by a fine of not less than $500 nor more than $1,000 or by imprisonment for not less than 10 nor more than 100 days or by both the fine and imprisonment.

    As an alternative to or in addition to any other sanctions provided by law for violations of this act, if the Commissioner of Labor finds that an employer has violated any provision of this act, the commissioner is authorized to assess and collect administrative penalties, up to a maximum of $250 for a first violation and up to a maximum of $500 for each subsequent violation, specified in a schedule of penalties to be promulgated by the commissioner in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.). When determining the amount of the penalty imposed because of a violation, the commissioner shall consider factors which include the history of previous violations by the employer, the seriousness of the violation, the good faith of the employer and the size of the employer's business. No administrative penalty shall be levied pursuant to this section unless the Commissioner of Labor provides the alleged violator with notification of the violation and of the amount of the penalty by certified mail and an opportunity to request a hearing before the commissioner or his designee within 15 days following the receipt of the notice. If a hearing is requested, the commissioner shall issue a final order upon such hearing and a finding that a violation has occurred. If no hearing is requested, the notice shall become a final order upon expiration of the 15-day period. Payment of the penalty is due when a final order is issued or when the notice becomes a final order. Any penalty imposed pursuant to this section may be recovered with costs in a summary proceeding commenced by the commissioner pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). Any sum collected as a fine or penalty pursuant to this section shall be applied toward enforcement and administration costs of the Division of Workplace Standards in the Department of Labor.

    7. An employer shall conspicuously display written notices of the employees' rights, remedies and obligations under this act.

    ¹8. a. Nothing in this act shall be construed to supersede any provisions of State or federal law concerning labor-management relations or to reduce any rights or remedies available to employees or employee representatives under any collective bargaining agreement or any other applicable law.

    b. No provision of this act, or any regulation adopted to implement this act, shall be construed to:

    (1) Justify an employer in reducing any employee right to: have access to personnel files or other information about the employee; correct inaccurate information; restrict the disclosure of the files or information to parties other than the worker; or be notified of disclosures; or

    (2) Prohibit the employer from providing, or negotiating in collective bargaining to provide, an employee with rights greater than those provided by this act to: have access to personnel files or other information about the employee; correct inaccurate information; restrict the disclosure of the files or information to parties other than the worker; or be notified of disclosures.

    c. This provision shall apply irrespective of the date that a collective bargaining agreement takes effect.¹

    ¹[8.] 9.¹ This act shall take effect immediately.