S 0411

S‑0411.1 _____________________________________________

SENATE BILL 5033

_____________________________________________

State of Washington 57th Legislature 2001 Regular Session

By Senators Fairley and Costa

Read first time 01/08/2001. Referred to Committee on Labor, Commerce & Financial Institutions.

_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.

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

28 as follows:

29 (1) Every employer shall, at least annually, upon the request

30 of an employee, permit that employee or that employee's

31 representative to inspect and copy without charges, except a

32 reasonable copying charge, any or all of his or her own personnel

33 file(s). These file(s) shall be retained by the employer for a

34 minimum of three years after the employee ceases work for that

35 employer.

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

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

38 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

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

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

26 separate and distinct violation. Any penalty amount set in excess

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

28 consideration of any previous history of violations by the

29 violator.

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

31 employee whose request to inspect and copy personnel files has

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

33 any court of competent jurisdiction to recover damages for the

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

35 award reasonable attorney fees to a prevailing plaintiff.

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

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

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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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