The NYS Legislature recently amended the New York Labor Law (“NYLL”) adding § 210-b (herein, the “Section”), effective November 8, 2026, which imposes new requirements on employers to retain employee records and to provide notice to employees of potentially derogatory entries into their personnel files.
Who is an “employer”?
“Employer” is defined broadly to include sole proprietorships, partnerships, limited liability companies, corporations, public benefit corporations, not-for-profit organizations, governmental entities and labor organizations.
Who is an “employee”?
The Section defines employees as all current and former employees, but likely excluding independent contractors and unpaid interns or volunteers.
What is a “personnel record”?
Personnel records are defined as any record that identifies an individual’s “qualifications for employment, promotion, transfer, additional compensation or disciplinary action.”
What personnel records must be kept?
To the extent that such information/documents apply, employers must maintain the following items in employees’ personnel records:
- Personal identifiers: name, address, date of birth,
- Basic description of role: job title and description; rate of pay and any other compensation paid to the employee; starting date of employment;
- Application for employment: the job application of the employee; resumes or other forms of employment inquiry submitted to the employer in response to the employer’s advertisement by the employee;
- Evaluations: all employee performance evaluations, including but not limited to, employee evaluation documents; written warnings of substandard performance; lists of probationary periods; waivers signed by the employee; copies of dated termination notices; any other documents relating to disciplinary action regarding the employee.
What information should be excluded from personnel files?
Notably, employers are directed to omit personally identifiable information concerning third parties from their records where such information would constitute a clear invasion of one’s privacy.
How long must personnel records be kept?
Personnel records must be kept for at least three years after employment ends.
When are employers required to provide notice of changes to employees’ personnel files?
Employers are required to notify employees of changes to their personnel files when the employer enters a record into the employee’s file that may affect the employee’s “qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action.” Notice must be provided to the employee within ten days.
Are employees entitled to access their personnel records?
Yes. Employers must provide employees access to their respective personnel records within five business days of receiving a written request, at no charge to the employee. Employees are entitled to conduct two reviews per year, except that if notice of an adverse record is placed in the employee’s personnel file, the employee may review their records without counting towards the two-review-per-year allotment.
What if an employee disagrees with characterizations in their personnel records?
Employees are permitted to provide statements regarding any information and/or position included in their personnel records that they disagree with, and that statement must be retained as part of their record.
Does NYLL § 210-b impose new obligations on employers to remove false information contained in personnel records?
No, however the Section affirmatively states that “the employee shall have remedy through the collective bargaining agreement, other personnel procedures or judicial process to have such information expunged.” It also provides that employers and employees are free to negotiate the inclusion or exclusion of such information in employees’ records.
Does NYLL § 210-b create a private cause of action?
No, however, the New York Office of the Attorney General may impose fines between $500 to $2,500 per violation. Further, the Section specifically prohibits retaliation against employees who exercise their rights under the Section; such retaliation would likely retain employees’ ability to commence a private cause of action pursuant to NYLL § 740 or New York Civil Service Law § 75-b.
Does NYLL § 210-b supersede provisions negotiated pursuant to collective bargaining?
It depends. To the extent that a collective bargaining agreement (“CBA”) contains “substantially similar” provisions, the Section does not supersede the CBA. However, if the CBA imposes lesser requirements on employers to retain records and/or lesser access for employees to review and/or rebut their personnel information, the CBA is superseded by the Section.
