New York enacts law on employee access to personnel records

Effective November 8, 2026, all New York employers, regardless of size, must provide current and former employees with access to their personnel records and notify an employee within 10 days of negative information being added to the employee’s personnel record.

The law is similar to laws currently in place in states such as Massachusetts, California, and Illinois. Under the new law:

• Upon written request, the employer must provide the employee with a copy of the personnel record, at no cost, within five business days. An employee may request to review the employee’s personnel record up to twice per calendar year.
• Employers must notify an employee within 10 days of placing negative information in the employee’s personnel record. The law defines “negative” information relative to its use. Information is negative, “to the extent that the information is, has been used or may be used, to negatively affect the employee’s qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action.” The notice requirement for negative information may therefore extend beyond formal discipline documents, to include any written or recorded criticism of the employee’s performance.
• An employee request for access to the employee’s personnel records that results from a negative information notice does not count towards the two-per-year limit.
• If an employee disagrees with any information in the personnel record, and the parties cannot agree to correct or remove it, then the employee may submit a written statement on the matter which must be kept as part of the personnel record.
• Employers must maintain an employee’s personnel record for at least three years following an employee’s termination of employment.

The law broadly defines a “personnel record” as a record kept by an employer that identifies an employee, to the extent the record is, has been, or may be used relative to the employee’s qualifications for employment, promotion, transfer, additional compensation, or disciplinary action. Violations carry fines ranging from $500 to $2,500, enforced by the New York attorney general. The law prohibits employers from retaliating against employees who exercise their rights under the law.

In signing the bill, Governor Hochul issued an approval memorandum noting that the bill had “ambiguities that needed to be resolved to avoid uncertainty for both employers and employees, including clarifying that employers are not required to create a personnel file or produce new documents beyond the records they currently maintain, and that personnel files only include records or documents used to determine an employee’s qualifications for hiring, retention, promotion, transfer, additional compensation, or disciplinary action.”

Governor Hochul stated that she had reached an agreement with the New York State Legislature to modify the bill to address these concerns through a “chapter amendment,” which is expected to be adopted in the upcoming legislative session, which begins in January 2027, and is expected to be retroactive to the law’s original effective date. (A chapter amendment is an agreement between the governor and legislative leaders on changes to a bill being signed into law by the governor. The governor outlines the agreed-upon changes in an approval message when signing the bill and the amendments are then adopted by the legislature, with language that provides the amendments are effective retroactive to the date the bill was signed into law.) Until the chapter amendment is enacted, the law as signed will take effect on November 8, 2026, and employers should plan to comply with it as written.

We recommend that New York employers review their current policies and procedures with respect to personnel records before the law takes effect. Employers should put in place processes to respond in a timely manner to employee requests to review their files and ensure that they have procedures to notify employees about negative information being placed in their personnel records. We will continue to monitor the chapter amendment and provide updates as the law develops.

If you have any questions concerning this alert, please contact your McDermott Will & Schulte lawyer.