S-0806.2

SUBSTITUTE SENATE BILL 5130

State of Washington

67th Legislature

2021 Regular Session

BySenate Labor, Commerce & Tribal Affairs (originally sponsored by Senators Kuderer, Keiser, Das, Hunt, Robinson, Saldaña, Stanford, and Wilson, C.)

READ FIRST TIME 02/15/21.

AN ACT Relating to employee's rights concerning personnel files and disciplinary actions; and amending RCW 49.12.250.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 49.12.250 and 1985 c 336 s 2 are each amended to read as follows:

(1) ((Each))Within 14 calendar days of a request by an employee, former employee, or their attorney, agent, or fiduciary, each employer ((shall make such file(s) available locally within a reasonable period of time after the employee requests the))must furnish to the employee a complete, unredacted electronic or paper copy of the employee's personnel file(s) at no cost to the employee.

(2) An employee annually may petition that the employer review all information in the employee's personnel file(s) ((that are regularly maintained by the employer as a part of his business records)) or are subject to reference for information given to persons outside of the company. The employer shall determine if there is any irrelevant or erroneous information in the file(s), and shall remove all such information from the file(s). If an employee does not agree with the employer's determination, the employee may at his or her request have placed in the employee's personnel file a statement containing the employee's rebuttal or correction. Nothing in this subsection prevents the employer from removing information more frequently.

(3) A former employee shall retain the right of rebuttal or correction for a period not to exceed two years.

(4) Every employer shall, within 14 business days of receiving a written request by a former employee, or their attorney, agent, or fiduciary, furnish a signed written statement to the employee stating the reasons for and effective date of discharge.

(5) An employee may enforce this section through a private cause of action in superior court, without exhausting any administrative remedies, and for each violation will be entitled to equitable relief, statutory damages, and reasonable attorney fees and costs. The statutory damages for each violation shall be: $250 if the file or statement is not provided within 14 days from the due date; $500 if the file or statement is not provided within 28 days from the due date; and $1,000 if the file or statement is provided later than 28 days from the due date.

(6) For the purposes of this section, "personnel file" includes the following records, regardless of the labels of the files or folders in which they are maintained:

(a) All job application records;

(b) All performance evaluations;

(d) All medical, leave, and reasonable accommodation records, which an employer should maintain separately from other personnel records for medical privacy;

(e) All payroll records;

(f) All employment agreements; and

(g) All other records maintained in a personnel or employment file for that employee, however designated.

(7) This section may not be construed to create a retention schedule for records or to entitle an employee to an employer's protected legal file.

(8) Agents and fiduciaries must provide the document evidencing their legal authority to represent the employee or former employee at the time of any request.

(9) A public employer may redact information before sending the copy of the personnel file if required by law. The public employer must provide the reasons for any redaction and the supporting laws when furnishing the file.

(10) For purposes of this section:

(a) "Agent" means an attorney-in-fact granted authority under a durable or nondurable power of attorney.

(b) "Fiduciary" means an original, additional, or successor personal representative, guardian, or trustee.

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