Show Me the File

Show Me the File

As longtime readers know, one of our guilty pleasures is mercilessly and relentlessly lovingly making fun of California and its – let’s go with unique – brand of employment law. So, it should tell you something when a different state passes an employment law that makes California do a double take. And wouldn’t you know it, we don’t have to look very far to find it! In this edition, we’re going to discuss New York’s absolute banger of a personnel-records update – one that arguably manages to out-California California.
 
Personnel-record access laws are not new – multiple states have had some version on the books for years – generally structured around the same basic architecture: (1) an employee or former employee can request to see (and usually copy) their own file, (2) the employer has some window of time to comply, and (3) the definition of “personnel record” spans the predictable universe of things (performance reviews, disciplinary write-ups, applications, etc.). Kind of a boring, set-it-in-your-handbook-and-forget-it kind of law.
 
Well, New York apparently decided its current version needed some zhuzhing up (to be clear, I have no clue how to spell that word, but that’s what Google recommended and so that’s what we’re going with) and recently passed Senate Bill S3460.
 
The new law, signed by Governor Hochul on September 9, 2026, adds Section 210-b to the New York Labor Law, and it’s a meaningfully bigger swing than the standard personnel-file statute. Current and former employees can request their file (up to twice a year), and the employer has to produce it within five business days, at no cost. “Personnel record” is defined broadly enough to sweep in the usual stuff (see above) . . . as well as records held by third-party vendors on the employer’s behalf (the obvious target here is a PEO, but this could also include vendors like your payroll provider). Employees also get a formal right to dispute what’s in the file, and if they disagree with something and you can’t agree to fix it, they can submit a written rebuttal that becomes a permanent part of the record. Records have to be retained for three years post-termination (you should be doing this anyway), and retaliation against employees who use any of this is prohibited (you should not be doing this anyway).
 
That’s already a lot and more than enough to warrant one of our typical “update your handbook” blog posts . . . and that’s not even the part that’s making people nervous! Nope, the thing that most people are honing in on with respect to this law is the part about “negative information.” The statute requires employers to notify an employee within ten days any time something goes into their file that could negatively affect their employment, promotion, transfer, compensation, or discipline. Naturally, you’re probably thinking, “Wow, that’s a pretty extreme requirement. Certainly, the thoughtful folks in Albany provided a thorough definition of what ‘negative information’ means, right?”

If only. If only.

Because as written, “negative information” is not defined anywhere in the statute. It’s kind of just sitting there, daring you to figure out where the line is.
 
So, what do you actually do with this? Practically speaking, here’s where this leaves you between now and November 8, when the law goes into effect:

• Figure out what you’re already sitting on. Personnel files, performance reviews, disciplinary write-ups, applications, comp records, anything a third-party vendor is holding on your behalf – you need to actually know what’s in scope before someone asks for it and you’ve got five business days to produce it.

• Build the request-response pipeline now. Five business days is a heartbeat in corporate time. If a written request sits in an info@ inbox or on an associate manager’s desk for 72 hours, you are already in the danger zone. Establish a single, designated intake point (HR or counsel) with an immediate fulfillment workflow.

• Get comfortable erring on the side of notice. This is probably my biggest takeaway. Given that “negative information” isn’t defined, the safer play until guidance arrives is to treat anything even arguably negative – this will run the gamut from the very obvious things like write-ups, to the informal stuff such as summary emails related to coaching and feedback sessions – as triggering the 10-day clock.

• Train your managers on what NOT to say in the file. This isn’t new advice, but it’s a little more important now that the employee has a statutory right to actually read what you wrote about them, on a schedule you don’t really control. If the thought of an employee reading that personnel-file note out loud to their attorney makes you cringe, that note probably shouldn’t exist in that form.

New Recurring Feature

We’re going to start a new bit – and we suspect it’s going to have legs, mostly because there’s a good chance the material will never dry up – and that recurring feature will be “Employees getting fired for (allegedly) doing the job they were hired to do”.
 
To take a completely random example, let’s say you’re an organization and you hire someone to run your DEI program, and then (allegedly) you end up not liking it very much when that person actually reports DEI problems within your organization and you (allegedly) terminate that person for those reasons.
 
Two Ex-Warriors Employees Sue Franchise, Alleging Gender, Age and Racial Discrimination
 
Former associate general counsel Lisa Shelley and former VP of DEI Jennifer Vasquez both allege in a complaint filed August 25 in San Francisco Superior Court that they were fired in retaliation for flagging workplace discrimination surfaced by an internal NBA survey, and that instead of addressing the results, leadership went looking for whoever gave the critical answers. Vasquez’s DEI role was eliminated less than two weeks after Shelley’s termination; her duties were reportedly absorbed by a less experienced, lower-titled male colleague paid about the same as she was. Allegations, only – the Warriors told The Athletic the claims are “false, misleading, and unsupported by credible evidence” and that the organization “intends to vigorously defend against these baseless claims.”
 
Got a nominee for the next one? You know where to find us.
 
Wishing everyone a wonderful weekend. As always, if you’ve got questions, you know we’ve got answers (except what “negative information” actually means right now).

~ The W + K Team