At least annually, every employer must, upon the request of an employee, permit that employee to inspect any or all of the employee's own personnel files.  Each employer must make such files available locally within a reasonable period of time after the employee requests the files. 

An employee may annually petition that the employer review all information in the employee's personnel files that are regularly maintained by the employer as a part of the employer's business records, or are subject to reference for information given to persons outside of the company.  The employer must determine if there is any irrelevant or erroneous information in the files, and must remove all such information from the file.

If an employee does not agree with the employer's determination, the employee may request to have a statement containing the employee's rebuttal or correction placed in the employee's personnel file.  This requirement does not prevent the employer from removing information more frequently.  A former employee retains the right of rebuttal or correction for a period not to exceed two years.

These requirements do not apply to:

• the records of an employee relating to the investigation of a possible criminal offense; or
• information or records compiled in preparation for an impending lawsuit which would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.

The Department of Labor and Industries (L&I) rules provide that employers, subject to the minimum wage laws, must keep certain employee payroll and employment information.  Under L&I rules, every employer must:

• keep, for at least three years, a record of the name, address, and occupation of each employee, dates of employment, rate or rates of pay, amount paid each pay period to each such employee and the hours worked;
• make the these record  available to the employee, upon request, at any reasonable time; and
• within ten business days of receiving a written request by a former employee, furnish a signed written statement stating the reasons for and effective date of discharge.

Within 14 calendar days of a request by an employee, former employee, or their agent or fiduciary, each employer must furnish to the employee a complete, unredacted copy of the employee's personnel files at no cost to the employee.

The employee's ability to petition for the employer's review of the personnel file is not limited, in part, to those files maintained as part of the employer's business records.  

Within ten business days of receiving a written request by a former employee or their agent, the employer must furnish a signed written statement to the employee stating the reasons for and effective date of discharge. 

An employee may enforce the employee's rights through a private cause of action in superior court, without exhausting any administrative remedies.  For each violation, the employee is entitled to equitable relief, statutory damages of $1,000, and reasonable attorneys' fees and costs. 

Personnel file includes all:

• job application records;
• performance evaluations;
• disciplinary records;
• medical, leave, and reasonable accommodation records;
• payroll records;
• employment agreements; and
• other records maintained in a personnel or employment file for that employee, however designated.

PRO:  Personnel files change, after an employee has left employment and after there has been litigation in order to help the employer.  We can stop this practice of changing the facts after an employer get sued.  This would allow the employee or someone representing them to request the personnel files.  It defines personnel file.  This would end the practice of getting the personnel file and in litigation, other information dribbles in.  Allowing a private right of action is because that is the gold standard for ensuring compliance with the law.  If employers comply, that will ensure them not being on the other side of a lawsuit.  This will help employers and employees.
 
In workers' compensation setting, there is information needed to make sure that benefits are paid at the correct rate.  Employers are the only ones who have the accurate, current data so that wage benefit may be properly calculated.  We are not asking for new records to be created or to put a burden on employers.  We need to know what workers were making at the time of injury.  Otherwise, the injured worker will receive the workers compensation minimum statutory benefit.   L&I often has a very difficult time getting this information. 
 
This bill clarifies the law for records and termination.  Employees and former employees need personnel files to abide by noncompete, confidentiality agreements; to verify and correct erroneous information; and to determine reasonable accommodations; and to get legal advice.  It is hard to get legal advice without the documents.  Personnel records are not defined and often employers only give traditional information.  There is no deadline in the law and it does not require that they get a copy.  They have to come to the office; that may be out of state.  It does not help those with disabilities or who do not read English.  Courts may say that you have to go through L&I.  However, there is no record of L&I enforcing the current provisions.  Records can trickle in.  They are often electronic and can be sent by email.
 
Many employees do not have records because they are careless or very often they were never given copies or they do not keep them for 10 to 15 years.  Sometimes there is information in portal but formers employees cannot log back in.  Also, they usually need information the employer paid port of health insurance premium for workers' compensation payments. 
 
The bill gives employers a checklist of documents to keep in personnel file.  They will not need to call an attorney and ask what to keep in the file.  The bill does not require that employers create records, just to keep them in the file and make them available to the employee.  It facilitates legal advice and reduces lawsuits or expedites the advice and reduces cost.  If both parties' attorneys have records, frivolous lawsuit are less likely to happen. 

CON:  We are concerned about this bill.  It will make life easier for many attorneys but it will make life difficult for 90 percent of small employers that do not keep these records.  Many records are not required to be kept.  With respect to discharge, this is an at will state.  An employer does not have to give a reason for discharge.  Most small business do not have to give a reason for discharge.  This will give an expectation that employees will get a reason.  If they are not happy with the reason, there will be lawsuits.  Human resources for small business is the owner at the kitchen table.

OTHER:  The time periods for records retention are inconsistent.  L&I rules and policies, and federal rules outline certain records and time periods to be kept.  Section 6 of the bill melds the concepts of payroll records and personnel records.  It adds two new records, application and employment agreements.  It is unsure if this is prospective.  It is silent on the length of record retention.  It includes medical and leave files.  But the ADA prohibits keeping medical records in a personnel file.