Client Alert: Open File Policy: New York Gives Current and Former Employees the Right to See Their Personnel Records
Labor Law § 210-b takes effect November 8, 2026. Here is what general counsel and HR directors need to know.
Starting November 8, 2026, current and former New York employees can see and push back on what their employer keeps in their file.
Every New York employer, public or private, and regardless of size, must be ready to:
Produce the file: provide a free copy of a current or former employee's personnel record within five business days of a written request.
Flag negatives: give the employee written notice within 10 days of adding negative information to the file to respond.
Accept rebuttals: keep an employee’s written dispute as a permanent part of the record and share it with any third party that receives the personnel information.
Keep everything: retain complete records, without deletions, until three years after employment ends.
Each violation carries a fine of $500 to $2,500. With the effective date days away, the checklist at the end of this article shows where to start. The law, Chapter 293 of the Laws of 2026 (S3460/A2107), was signed by Governor Hochul on September 9, 2026, and adds Section 210-b, “Access to personnel records,” to the Labor Law. Whether the law applies to remote employees working from New York for out-of-state worksites remains an open question.
Core Requirements
Two reviews a year. Employers may limit employees to two reviews per calendar year of their personnel records.
What triggers the 10-day notice? Any information 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 discipline. A review prompted by that notice does not count toward the two-review limit.
When rebuttals apply. An employee may submit a written statement of rebuttal of the negative information if the parties cannot agree to correct or remove disputed information. The rebuttal statement must travel with that information to third parties for as long as the original information stays in the file.
Retention period. The three-year clock runs after termination, but the obligation starts on day one of employment, and no expungement is permitted in between.
What Counts as a “Personnel Record”
As enacted, “personnel record” is broad. It covers records the employer keeps about an employee, including records held by vendors under contract with the employer, such as HR and payroll providers. It excludes other individuals’ personal information where disclosure would be a clearly unwarranted invasion of privacy. The expected chapter amendment would narrow the term to records used to determine hiring, retention, promotion, transfer, additional compensation, or discipline. Until then, assume the broader reading applies, including to managers’ side files and email.
Penalties, No Retaliation, and Private Claims
The Attorney General enforces the law, with civil fines of $500 to $2,500 per violation by “an employer or any other person.” The law broadly prohibits retaliation, expressly including threats to report the immigration status of an employee or a family or household member. The statute does not spell out a private damages remedy, but the sponsor memorandum says employees facing retaliation “may also bring a claim,” a departure from Massachusetts, where courts have found no private damages action. Employees may also seek expungement of information the employer knew or should have known was false through a collective bargaining agreement, personnel procedures, or judicial process. A collective bargaining agreement providing at least substantially similar access is not superseded.
A Chapter Amendment Is Coming
In her approval memorandum, Governor Hochul noted that the bill had ambiguities requiring a Chapter Amendment to be agreed upon by the State legislature, in the session beginning January 2027. The amendment is expected to clarify that employers need not create personnel files or new documents beyond those they already maintain, and to narrow the definition of personnel record as described above. The core obligations are not expected to change. Comply with the law as written on November 8, but build processes that can be narrowed once the amendment passes.
What Employers Should Do Now
Map your records. Find every place personnel records live, including managers’ files, email, and vendor systems, and confirm vendors can produce them within five business days.
Build a request process. Centralize intake and response to meet the five-business-day deadline.
Create a notice protocol. Make warnings, negative reviews, and similar documents trigger the 10-day notice and document delivery.
Plan for disputes and redaction. Track rebuttal statements, attach them to third-party disclosures, and redact other individuals’ private information.
Lock down retention. Suspend automatic deletion that conflicts with the three-year rule.
Train managers and HR. Emphasize factual documentation and the anti-retaliation rules, including the ban on immigration-related threats.
Review CBAs and monitor 2027 for Chapter Amendment. Confirm whether union agreements already provide comparable access, and track the chapter amendment to update policies, practices, and HR- and manager training when the amendment passes.
Update offboarding. Keep a channel open for former employees' requests, and loop in counsel when a request may signal a claim.
If you would like a legal compliance review of your organization’s personnel practices or HR and manager training, or you have questions, please reach out to Lisa M. Brauner, a partner in the New York office of Whiteford's Labor and Employment Practice at Lbrauner@whitefordlaw.com or 646-618-8655.