Update Applicable to:
All employers in the state of New York

What happened?
On March 16, 2022, Governor Hochul signed Senate Bill S5870 (SB S5870) into law, which adds more anti-retaliation protections for employees.

What are the details?
Effective immediately upon signage, employers are now prohibited from disclosing the personnel file of an employee who opposed unlawful discrimination, filed a complaint, or testified or assisted in a legal proceeding to an unauthorized third party for any reason. This new provision does not define the term “personnel file.” Generally, however, it includes:

• performance evaluations;
• complaints from guests or co-workers;
• disciplinary forms;
• attendance records;
• forms that relate to transfers and promotions or demotions; and
• termination forms.

According to the Senate’s justification for the bill, retaliation frequently appears in the form of leaking an employee’s personnel file with the intent to disparage or discredit a victim or witness of discrimination or harassment in the workplace. This new law now makes clear that the release of a personnel file because an employee filed a complaint or cooperated with an investigation counts as retaliation and is completely prohibited under the New York State Human Rights Law (SHRL).

However, the law explicitly states that there is no violation of the law and it is not retaliatory for an employer to disclose personnel records in the course of commencing or responding to a complaint in a civil or criminal action or any other judicial or administrative proceeding as permitted by applicable law.

For more information, please see the links below:

Senate Bill S5870 (SB S5870)

Article

What do employers need to do?
Employers should review the links provided above and review their policies relating to how they manage employee’s personnel files.

It is also recommended by the law firm, Fox Rothchild, that employers should discuss this new law with management and human resources to ensure that they understand the legal consequences of disclosing personnel records in retaliation against an employee who opposes unlawful discrimination.

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