New York's Personnel File Law: What Employers Must Change Before November 8

This analysis first appeared in Law360’s Expert Analysis on September 23, 2026. Law360 permits authors to republish their work in firm publications, and it is reproduced here with section headings, links and two reference blocks added for the web. The statute’s text, the Governor’s approval memorandum and the employee’s side of the same law are in the firm’s explainer on Labor Law § 210-b.

The New York State Legislature, in its most recent session, has given employees new rights in the form of the right to review, obtain and comment on their personnel file. Effective November 8, 2026, this will force employers to act more responsibly in their day-to-day affairs in running their businesses.

New York has never given a private sector employee a statutory right to read their own personnel file. However, Chapter 293 of the Laws of 2026, signed September 9, 2026, adds Labor Law Section 210-b, and it applies to every employer in the state. The statute is short, but its consequences for how an employer documents an employee’s performance are not.

The statute, section by section

What counts as a personnel record

Section 210-b(1)(c) defines a personnel record as “a record kept by an employer that identifies an employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation or disciplinary action.” Section 210-b(1)(c) reaches records held by a third party that has a contractual agreement with the employer, including a file maintained by a payroll vendor or a professional employer organization. However, it excludes “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.”

Further, Section 210-b(1)(c) offers a nonexhaustive list of documentation prepared by the employer that is included within the personnel file. This includes the employee’s name, address, date of birth, job title and description; rate of pay and other compensation; starting date; the application and any resume submitted in response to the employer’s advertisement; all performance evaluations; written warnings of substandard performance; lists of probationary periods; waivers signed by the employee; dated termination notices; and any other documents relating to disciplinary action. Records must be typewritten, printed or handwritten in indelible ink.

The two affirmative duties

Section 210-b(2) imposes two affirmative duties. First, an employer must notify an employee within 10 days of placing any information in the personnel record that is, has been or may be used to negatively affect the employee’s qualification for employment, promotion, transfer, additional compensation or the possibility of disciplinary action. Second, upon written request, the employer must provide a copy of the record at no cost within five business days. The employer need not allow review of the personnel file on more than two separate occasions in a calendar year, but a review caused by a negative information notice does not count against the two.

Disputing an entry

Section 210-b(3) governs disputes involving the veracity of items contained within the personnel file. If the employee disputes an entry, the employer and the employee may agree to remove or correct it. If an agreement is not reached, the employee may submit a written statement explaining the employee’s position, which becomes part of the record and must accompany the information whenever it is transmitted to a third party, so long as the original is retained. If the employer placed information in the record that it knew or should have known to be false, the employee has a remedy to have it expunged through the collective bargaining agreement, other personnel procedures or the judicial process.

Retention, written policies and collective bargaining agreements

Section 210-b(4) requires the employer to retain the complete personnel record, without deletion or expungement, from the date of employment until three years after termination.

Section 210-b(5) requires any written personnel policy on terms and conditions of employment to be continuously maintained at the office where personnel matters are administered.

Section 210-b(6) preserves a collective bargaining agreement only if it provides personnel file access that is at least substantially similar to the access and dispute mechanisms for the contents of the personnel file that Section 210-b provides.

The fine and the anti-retaliation clause

Section 210-b(7) sets a fine of not less than $500 nor more than $2,500 for any violation, enforced by the attorney general.

Lastly, Section 210-b(8) prohibits discharging, threatening, penalizing, or in any other manner discriminating or retaliating against an employee for exercising rights under the section, and expressly includes contacting or threatening to contact immigration authorities about the employee or a member of the employee’s family or household.

The Governor’s approval memorandum

Gov. Kathy Hochul signed the bill, but her approval memorandum says the bill as drafted contains “ambiguities that needed to be resolved to avoid uncertainty for both employers and employees,” and records an agreement with the Legislature to take them up next session. The memorandum clarifies both that employers are not required to create a personnel file or produce new documents beyond the records they currently maintain, and that a personnel file includes only the records used to determine an employee’s qualifications for hiring, retention, promotion, transfer, additional compensation or disciplinary action.

Notably, the Legislature’s 2027 regular session does not convene until January, so absent a special session, the amendment cannot be enacted prior to the effective date. Consequently, between November 8, 2026, and any future amendment, the statute as signed is the operative text. The amendment, as the memorandum describes it, narrows what counts as the record. The notice period, the production deadline, the retention period, the written statement and the antiretaliation provision are outside its scope. Employers that take the memorandum as a signal to defer compliance are reading into it something it does not say.

How it compares to the Massachusetts statute

According to the sponsor’s memorandum, the drafters used the Massachusetts personnel record statute, General Laws Chapter 149, Section 52C, as their model. The two texts track nearly word for word. However, one difference matters more than the rest. Massachusetts ties its retention requirement and its list of required contents to employers of 20 or more employees. This is similar to federal employment laws that tie a right to a threshold number of employees. New York, on the other hand, has no threshold, similar to its other employment protection laws. Therefore, in New York, the 10-day notice, five-day record copy and three-year retention periods apply to a two-person office and a hospital system alike. New York also added the immigration clause in Section 210-b(8), similar to other recent employment law amendments (see, for example, Labor Law Section 740(1)(e), which carries the same immigration clause). Massachusetts has no counterpart.

Where the exposure actually is

The statute’s fine is modest, and the new section does not create a private right of action to collect it. But it is incumbent upon employers to understand that exposure is elsewhere, in the following places.

Labor Law Section 215

Labor Law Section 215(1)(a)(vi) prohibits retaliation against an employee who has otherwise exercised rights that are protected under the labor law. A written request under Section 210-b is one such exercise. Section 215(2) gives an employee a private right of action if they are discharged, demoted or otherwise penalized after making a written request. The action must be brought within two years, in which the court may order reinstatement, award lost compensation or front pay in its place, add liquidated damages capped at $20,000, and shift attorney fees. The same section is the backbone of wage theft retaliation cases, and the mechanics are identical here.

Labor Law Section 740

Labor Law Section 740 explicitly prohibits an employer from retaliating against an employee for exercising any rights under any statute, including Section 210-b. The damages for violating the whistleblowing statute include noneconomic damages, economic damages, punitive damages and reasonable attorney fees.

The evidentiary effect of the notice requirement

In discrimination and retaliation litigation under the New York State Human Rights Law and Title VII, the question at summary judgment is usually whether the stated reason for an adverse action is the real one. A warning that surfaces for the first time at the termination meeting has always invited that question. After November 8, 2026, the absence of a 10-day notice period will be a statutory violation as well, and the employee’s contemporaneous written statement must sit next to the warning in the file. The record an employer builds during employment will be what the jury reads. An employer that never investigated the complaint it later cites will now have a dated file that says so.

Retention and spoliation

Section 210-b(4) creates a statutory duty to preserve evaluations, warnings and disciplinary documents for three years after separation. Where a party has a duty to preserve and the evidence is gone, Civil Practice Law and Rules Section 3126 sanctions and an adverse inference charge for evidence spoliation follow on a showing of ordinary negligence. Thus, an employer that tells a plaintiff the old evaluations were purged in a system migration will now be explaining a statutory violation, not a housekeeping choice.

Open questions

The text leaves several questions that the promised amendment may or may not answer. For instance, what counts as placing information in the record? A supervisor’s contemporaneous notes, an email between managers about an employee, an internal investigation report and a performance improvement plan are all records that may be used relative to discipline. The safer reading is that a document becomes part of the personnel record when it is used for one of the enumerated purposes, and the notice obligation runs from that use. Employers should not assume that retaining a document outside the human resources system keeps it outside the statute.

Additionally, how does the retention duty square with data minimization policies and the state’s SHIELD Act? The SHIELD Act requires businesses to safeguard the private information of customers and employees alike, including Social Security numbers, driver’s license numbers and account numbers, and to dispose of materials when they are no longer needed. Section 210-b(4), on the other hand, now requires the opposite for the personnel record through disallowing any deletion from the personnel file for three years after separation. The expungement remedy in Section 210-b(3) for false information and removal by mutual agreement are the only exceptions to the rule disallowing material disposal.

What employers should do now

Employers should stop purging separated employees’ files, as those who left within the last three years are employees under the statute and may request their file beginning on November 8, 2026. Notably, personnel records are placed in computer human resource systems. Payroll vendor systems have access to sensitive materials. Attachments to emails from managers and shared drives within an office or in the cloud contain personnel records, as do records that third-party contractors hold.

Employers should, as a matter of course, automatically plan to comply with the 10-day disclosure requirement when they create the personnel document. The system or template that generates a warning, an evaluation or a performance improvement plan should generate the employee notice when the personnel document is created. Managers must be trained that the notes they keep about an employee involving discipline, promotion, transfer or additional compensation are part of the personnel record and must be disclosed within the 10-day notice period.

Employers must also designate the request channel. One inbox or one person should receive written requests, deliver the full copy inside the five-business-day window without a fee, keep count of the two annual reviews, and exclude from that count any review that follows a negative information notice.

Further, employers must create the rebuttal mechanism. When an employee submits a written statement, it must be attached to the disputed entry and transmitted with it to any third party, including a reference check, a background vendor and an unemployment insurance hearing.

Employers must also reconcile the retention schedule. The personnel record must be kept, without deletion, from hire until three years after separation. Notably, litigation holds continue to apply on top of that. It is also important to keep the written personnel policy, as amended, at the location the statute specifies, which is the office that administers personnel matters. Multisite and remote employers should designate that office in writing.

Finally, treat a file request as protected activity. Any adverse action that follows one should be reviewed before it is taken, with the documentation already in the file.

Conclusion

Employers in New York now have another substantive piece of legislation to learn and follow. Key to this is the 10-day period to notify the employee about new probative information in their personnel file, the employee’s right to contest the new information, the five-day period to produce the personnel file and provisions to protect against an employer’s retaliatory behavior toward employees who exercise their rights under this new law.

Sources

• Law360 Expert Analysis, Jason Tenenbaum, September 23, 2026, the original publication of this piece (subscription): https://www.law360.com/articles/2528633
• New York State Senate, S.3460 (2025-2026 session), bill text, sponsor memo and legislative history: https://www.nysenate.gov/legislation/bills/2025/S3460
• The Governor’s approval memo, as quoted in the National Law Review’s report on the signing: https://natlawreview.com/article/new-york-state-mandates-employee-access-personnel-records
• Massachusetts General Laws c. 149, § 52C, the model statute: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter149/Section52C
• New York Labor Law § 215 (retaliation): https://www.nysenate.gov/legislation/laws/LAB/215
• New York Labor Law § 740 (whistleblower protection): https://www.nysenate.gov/legislation/laws/LAB/740
• New York Civil Practice Law and Rules § 3126 (penalties for refusal to disclose): https://www.nysenate.gov/legislation/laws/CVP/3126