New York Personnel Records Law Could Help Expose Retaliation Against Whistleblowers

by Johanna C. Richter and Leanne Alvarado

What Is New York Labor Law Section 210-b?

Effective November 8. 2026, the Access to Personnel Records Act (the “Act”), which New York Governor Kathy Hochul signed into law on September 9, 2026, amends New York Labor law to give employees the right to be notified when negative information is added to their personnel files, obtain copies of these files, and dispute its contents when necessary.  Under the Act, which adds Section 210-b to the New York Labor Law, a personnel file covers the record maintained by an employer compiling information regarding an employee’s qualifications, performance reviews, and any disciplinary action taken in the history of their employment.

Employers Must Notify You Within 10 Days of Negative Information

Under the Act, employers must notify an employee within ten days of adding negative information to the employee’s personnel file.

How Often Can You Request Your Personnel File in New York?

The Act permits employees to review their personnel records twice during a calendar year.   Additionally, an employee may request a copy of their personnel record each time they are notified that negative information has been added, and this review does not count towards the annual cap.  Upon submission of a written request by the affected employee, an employer must provide a copy of the personnel record to the employee within five business days at no cost.

How to Dispute or Correct Your Personnel File

Upon review of the personnel record, an employer and employee may reach a mutual agreement to correct or remove disputed information. If an agreement is not reached, the employee may include a written statement explaining their position in the personnel record. Upon disclosure of the personnel record to a third party, the employees’ written statement must accompany the original information to provide a more holistic overview.  If an employer includes information in a personnel record that it knows or should know is false, the employee may seek to remedy the falsehood through the provisions of a collective bargaining agreement, other personnel procedures, or judicial proceedings to expunge this information from the personnel record.

How Long Must New York Employers Keep Personnel Records?

Employers must maintain a complete and accurate personnel record of any employee without deletion or expungement of information from the date of employment to three years after the termination of the employee.

Retaliation and “Papering the File” After Reporting Misconduct

The Act builds on existing New York state law protecting workers from retaliation. New York Labor Law Section 740 prohibits employers from retaliating against employees who report workplace misconduct.  Retaliatory action is defined as an adverse action taken by an employer to discharge, threaten, penalize, or discriminate against a current or former employee.  Additionally, a sudden buildup of poor performance reviews or disciplinary notes after an employee reports such misconduct, a practice sometimes referred to as “papering the file,” may signal that an employer is potentially retaliating against an employee by intentionally painting them in a false negative light.

Section 210-b expressly provides that an employer may not take any retaliatory action against an employee who exercises their protected rights under the statute. More specifically, in addition to the prohibited retaliatory actions set forth in Section 740, the Act prohibits employers from threatening, penalizing, discriminating, and retaliating against an employee for their immigration status. This includes, but is not limited to, threatening to contact, contacting, or reporting an employee’s actual or suspected immigration status or that of a member of the employee’s household to U.S. immigration authorities.

How Section 210-b Expands Whistleblower Protections in New York

The new law builds on the anti-retaliation provisions provided under Section 740. By expressly prohibiting immigration related threats, the statute extends whistleblower protections to employees who exercise rights under the statute, ensuring that employees may request, review, or amend personnel records without fear of adverse employment action or coercion.

The approval of the new law allows employees to retain copies of their personnel record to maintain a record of any actions taken by their employer before and after reporting misconduct. Such preservation will provide employees with stronger document retention capabilities that will require them to be notified when such negative comments are made to personnel records and obtain the record more easily. This statute extends employee protections against employer retaliation for whistleblowing activity that had not previously existed under the New York Labor Law.

Penalties for Employers Who Violate Section 210-b

Violations of Section 210-b will be enforced by the state attorney general of New York. Failure to enforce all requirements of the statute will oblige employers to face state fines of $500 to $2500. Further, employers may be subject to potential action under the provisions of a collective bargaining agreement, personnel procedures, or judicial procedures.

Expected 2027 Amendments to Section 210-b

Although Section 210-b will go into effect on November 8, 2026, in her approval memorandum that accompanied the bill signing, Governor Hochul flagged that the bill contains technical ambiguities that remain to be addressed.  It is anticipated that various amendments will be considered in 2027 to provide further specification on the defined scope of a personnel record and clarify that employers are not expected to create new personnel files or produce documents that are not already routinely maintained. Employers and employees should be on the lookout for these modifications.