ASSEMBLY, No. 2150

STATE OF NEW JERSEY

INTRODUCED JUNE 17, 1996

By Assemblyman GUSCIORA

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 and 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 and credit 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 criminal 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 authorized agent of the employee to review all information in the employee's personnel file. The employer shall, not more than seven business days following a written request by the employee, make the information available to the employee or authorized agent during work hours at or near the employee's work location 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 seven 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 wok location 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 cost of copying information required pursuant to this section.

    3. An employer may maintain a separate file for information related to any criminal investigation of the employee, if the following conditions are met:

    a. Upon the conclusion of the investigation, the employee is notified of the existence of the file and all information in the file is made available to the employee; and

    b. The file is destroyed if no criminal or disciplinary action is taken upon the conclusion of the investigation.

    4. If an employee believes that any information in the employee's personnel file is inaccurate or misleading, the employee may:

    a. Submit a written statement explaining the employee's position regarding the disputed information; or

    b. 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. Information which is not relevant to an employee's pay, benefits, qualification for work or work performance may be placed in the employee's personnel file only upon written authorization of the employee. No employer shall require an employee to authorize the placing of such information in a personnel file.

    6. a. An employer shall not disclose information, other than information which is permitted to be disclosed pursuant to subsection b. of this section, from an employee's personnel file to any person without prior written authorization from the employee, unless the disclosure is made:

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

    (2) To a law enforcement agency in connection with a criminal investigation or prosecution;

    (3) To any other government agency to which the employer is required by law to disclose the information; or

    (4) Pursuant to any order of a court of competent jurisdiction.

    The employer shall notify the employee whenever information regarding the employee is disclosed, including information disclosed with the prior written authorization of the employee but not including information which is permitted to be disclosed pursuant to 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 an employee:

    (1) The name, title, compensation, period of employment and reason for separation of the employee from employment;

    (2) Information regarding the qualifications or job description of the position which the employee holds; and

    (3) Any records which are required by law to be made public.

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

    7. An employer who violates a provision of this act shall be guilty of a crime of the fourth degree.

    8. This act shall take effect immediately.

STATEMENT

    The purpose of this bill is to provide workers with reasonable access to their personnel files and limit disclosures of information from those files.

    The bill requires an employer to permit employee review of the employee's personnel file and provide copies of information from the files requested by the employee. The bill requires that the file be made available during work hours at or near the work site not more than seven business days following a written request by the employee. The employer is also required to maintain the personnel file for employee review for at least 12 months after any termination of the employee.

    The bill requires that if the employee submits a statement that the information in the file is inaccurate or misleading, the statement must be included in any disclosure of the disputed information.

    Employers are prohibited from disclosing information from an employee's personnel file without prior written authorization from the employee, with certain exceptions such as disclosures to law enforcement agencies and other governmental agencies as required by law. An employer is also required to notify the employee when the information is disclosed.

Concerns employee personnel files.