S‑1763.1   _____________________________________________

SUBSTITUTE SENATE BILL 5033

           _____________________________________________

State of Washington      57th Legislature     2001 Regular Session

By Senate Committee on Labor, Commerce & Financial Institutions (originally sponsored by Senators Fairley and Costa)

READ FIRST TIME 02/21/01. 

_1      AN ACT Relating to personnel files; amending RCW 49.12.005,

_2  49.12.250, and 49.12.260; repealing RCW 49.12.240; and prescribing

_3  penalties.

_4  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

_5      Sec. 1.  RCW 49.12.005 and 1998 c 334 s 1 are each amended to read

_6  as follows:

_7      For the purposes of this chapter:

_8      (1) The term "department" means the department of labor and

_9  industries.

10      (2) The term "director" means the director of the department of

11  labor and industries, or the director's designated representative.

12      (3) The term "employer" means any person, firm, corporation,

13  partnership, business trust, legal representative, or other

14  business entity which engages in any business, industry,

15  profession, or activity in this state and employs one or more

16  employees and for the purposes of RCW 49.12.270 through 49.12.295

17  and 49.12.450 also includes the state, any state institution, any

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_1  state agency, political subdivisions of the state, and any

_2  municipal corporation or quasi-municipal corporation.

_3      (4) The term "employee" means an employee who is employed in

_4  the business of the employee's employer whether by way of manual

_5  labor or otherwise.

_6      (5) The term "conditions of labor" shall mean and include the

_7  conditions of rest and meal periods for employees including

_8  provisions for personal privacy, practices, methods and means by

_9  or through which labor or services are performed by employees and

10  includes bona fide physical qualifications in employment, but

11  shall not include conditions of labor otherwise governed by

12  statutes and rules and regulations relating to industrial safety

13  and health administered by the department.

14      (6) The term "temporary services agency" means any individual

15  or entity that is engaged in the business of furnishing

16  individuals to perform services on a part-time or temporary basis

17  for a third party.

18      (7) The term "personnel files" means records kept by an

19  employer, in any form, that are used or have been used to

20  determine the employee's qualification for employment, promotion,

21  additional compensation, or employment termination, or other

22  disciplinary action.

23      (8) For the purpose of chapter 16, Laws of 1973 2nd ex. sess. a

24  minor is defined to be a person of either sex under the age of

25  eighteen years.

26     Sec. 2.  RCW 49.12.250 and 1985 c 336 s 2 are each amended to read

27  as follows:

28      (1) If an employer keeps a personnel file on an employee, the

29  employer shall, at least annually, upon the request of that

30  employee, permit that employee or that employee's representative

31  to inspect and copy without charges, except a reasonable copying

32  charge, any or all of his or her own personnel file(s).  These

33  file(s) shall be retained by the employer for a minimum of three

34  years after the employee ceases work for that employer.

35      (2) Each employer shall make such file(s) available locally

36  within ((a reasonable period of time)) fourteen days after the

37  employee requests the file(s).

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_1      (((2))) (3) An employee annually may petition that the employer

_2  review all information in the employee's personnel file(s) that

_3  are regularly maintained by the employer as a part of his business

_4  records or are subject to reference for information given to

_5  persons outside of the company.  The employer shall determine if

_6  there is any irrelevant or erroneous information in the file(s),

_7  and shall remove all such information from the file(s).  If an

_8  employee does not agree with the employer's determination, the

_9  employee may at his or her request have placed in the employee's

10  personnel file a statement containing the employee's rebuttal or

11  correction.  Nothing in this subsection prevents the employer from

12  removing information more frequently.

13      (((3))) (4) A former employee shall retain the right of

14  rebuttal or correction ((for a period not to exceed two years)).

15      (5) Individuals performing personal services for, or for the

16  benefit of, a third party pursuant to a contract with a temporary

17  services agency shall be, for the purposes of this section and RCW

18  49.12.050, employees of both the temporary services agency and the

19  third party.

20      (6) The director shall assess any employer found to be in

21  violation of this section, or rules or orders adopted or issued

22  pursuant to this section, a civil penalty of not less than five

23  thousand dollars a day for each violation.  Each and every violation

24  shall be a separate and distinct offense, and in case of a

25  continuing violation, every day's continuance shall be a separate

26  and distinct violation.  Any penalty amount set in excess of five

27  thousand dollars shall be set by the director in consideration of

28  any previous history of violations by the violator.

29      (7) In addition to any other penalty provided by law, an

30  employee whose request to inspect and copy personnel files has

31  been denied in violation of this section may bring an action in

32  any court of competent jurisdiction to recover damages for the

33  violation in the amount of five thousand dollars.  The court shall

34  award reasonable attorney fees to a prevailing plaintiff.

35      (8) A criminal action need not be brought against an employer

36  for that employer to be civilly liable under this section.

37 

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_1      Sec. 3.  RCW 49.12.260 and 1985 c 336 s 3 are each amended to read

_2  as follows:

_3      RCW ((49.12.240 and)) 49.12.250 ((do)) does not apply to the

_4  records of an employee relating to the investigation of a possible

_5  criminal offense.  RCW ((49.12.240 and)) 49.12.250 ((do)) does not

_6  apply to information or records compiled in preparation for an

_7  impending lawsuit which would not be available to another party

_8  under the rules of pretrial discovery for causes pending in the

_9  superior courts.

10      NEW SECTION. Sec. 4.  RCW 49.12.240 (Employee inspection of

11  personnel file) and 1985 c 336 s 1 are each repealed.

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