New York State has taken a broad approach to its new law that for the first time grants employees a legal right to access their personnel records.  Notably, the right of access extends beyond the typical contents of a personnel file, to include a range of documentation that may comprise a “personnel record”.  Understanding and managing for that range of documentation will be the greatest challenge that employers face in complying with the law, which takes effect November 8, 2026.

New York Differs from the Norm

New York is joining 19 other states that grant employees a legal right of access to their personnel files.  In many states, that right of access is limited, most often permitting an employee once or twice a year to view the standard employee file of hiring documents, performance reviews, and formal disciplinary documentation.  New York took a different approach, using Massachusetts as a model.

Under the new law, New York employees are granted a general right of access to review their personnel record up to two times per calendar year.  In addition to that general right of review, each time an employer puts negative information in the employee’s personnel record, the employer has 10 days to notify the employee that it has done so, and the employee has the right to review the personnel record within five business days after making a written request to do so.

The law defines negative information to include any information the employer may use or consider in regard to evaluating the employee’s continued employment, promotion, transfer, additional compensation or possible disciplinary action.   If an employee disagrees with any information in the personnel record, the employee can ask that it be removed or changed.  If the employer does not agree to modify the record, then the employee can submit a rebuttal that must be added to the personnel record.

Components of a “Personnel Record”

The law defines a personnel record to include a record of information that is or may be used in regard to the employee’s qualifications for employment, promotion, transfer, additional compensation or disciplinary action.  The law specifically lists the following types of documents as included:

• all standard employee identifying and employment information (g., name, address, date of birth, hire date, rate of pay, resume or application, etc.);
• all waivers and other agreements signed by the employee (g., confidentiality, noncompete, photo use authorization, etc.);
• all employee performance evaluations; and
• all warning notices and other records of disciplinary action.

The law excludes from the definition of a personnel record “information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of such other person’s privacy.”

Legal Actions and Penalties

Employers face a fine of between $500 and $2,500 for violating the new personnel records law.  The law also entitles employees to file a legal claim to challenge information contained in a personnel record that the employer knows or should have known to be false.

Precedent from Massachusetts

There are only a limited number of court decisions in Massachusetts that have actually discussed the application of that state’s similar definition of a “personnel record”, and most have involved police officers.  One of the most notable was a summary decision in DeAngelo v. Truro, issued by the Appeals Court of Massachusetts (December 2023), which included discussion of whether an apparently terminated employee had a legal right to see a copy of the report from an investigation conducted by a retired police chief who had concluded the plaintiff had done nothing wrong.  The plaintiff argued the report was part of her personnel record under the state statute, and the court ruled the plaintiff had raised a colorable argument that warranted further proceedings at the trial court level.  In other words, the investigation report might be part of the personnel record, but the court concluded that was a question of fact, and there is no reported decision of the final outcome on that matter.

In Hill v. Bratton, a Massachusetts Superior Court decision (Dec. 1995), a police officer sought to have the Internal Affairs Division’s file of various citizen complaints against him declared a personnel record, subject to disclosure, after he was assigned to administrative duty in part because of those reported complaints.  The court held that the assignment to administrative duty did not rise to the level of “discipline” because it was not listed as a disciplinary action in the police department’s manual of rules and procedures, and therefore the complaints did not yet meet the law’s definition of a personnel record.  The court’s “not yet” analysis was, however, very much predicated on the competing consideration of a different law that exempts law enforcement’s investigatory materials from disclosure if producing the document would be prejudicial to effective law enforcement.

Law enforcement is a different context than the private sector, with unique considerations and legal requirements, and of course the Massachusetts court decisions are solely dispositive as to their application of the Massachusetts state law.  Therefore, neither of these court decisions are of direct relevance to New York employers.  They do, however, suggest some judicial sensitivity to whether and when information related to complaints and investigations involving an employee would need to be disclosed as a personnel record.  The New York law also supports some sensitivity to that concern, as it recognizes an exception for personal information that, if disclosed, would be an unwarranted invasion of another person’s privacy.  There is, therefore, room for debate as to whether and when the New York personnel records law will require disclosure of documents related to a complaint that one employee may make against another employee.

Manager Notes

It is a recommended best practice for managers to maintain contemporaneous notes of issues that arise with respect to an employee’s behavior or work performance.  Those notes may ultimately be used for purposes of determining whether an employee should receive formal disciplinary action, be eligible for a salary increase or a particular amount of incentive compensation, or be selected in the event of workforce reductions.  It may also be that the notes sit in a file and are never used for any purpose because nothing about the employee’s subsequent behavior or performance necessitates using them.

When signing this bill into law, Governor Hochul announced she had reached agreement with the legislature to issue a chapter amendment by the end of the next legislative session in 2027, to clarify ambiguities.  Those ambiguities include clarifying that employers do not need to create any new records that they do not currently maintain, and that the personnel record only includes documents used to determine an employee’s qualifications for hiring, retention, promotion, transfer, additional compensation or disciplinary action.  While likely helpful, the chapter amendment as described by the governor will not provide clarity on whether a manager’s personal notes related to the work and behavior of employees on that manager’s team are considered part of a personnel record.

As the details and nuances of the law are clarified, employers should work with employment counsel to set parameters on what types of documentation will trigger providing notice to an employee that negative information has been added to the employee’s personnel record.  Erring on the side of possibly the most expansive interpretation of personnel records, employers should also train and remind their managers on how to document employee issues – with a focus on factual information, not judgments or conclusory statements.

By Tracey I. Levy