2023 -- H 5592

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- INSPECTION OF PERSONNEL

FILES

     Introduced By: Representatives Batista, Potter, Alzate, and Felix

     Date Introduced: February 15, 2023

     Referred To: House Labor

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 28-6.4-1 and 28-6.4-2 of the General Laws in Chapter 28-6.4 entitled

"Inspection of Personnel Files" are hereby amended to read as follows:

     28-6.4-1. Inspection of files Employee personnel records.

     (a)(1) Every employer shall, upon not less than seven (7) within five (5) days’ of a request

by an employee, advance notice, holidays, Saturdays, and Sundays excluded, and at any reasonable

time other than the employee’s work hours and upon the written request of an employee, permit

provide an employee to inspect with a copy of the employee's personnel files records. that are used

or have been used to determine that employee’s qualifications for employment, promotion,

additional compensation, termination, or disciplinary action. This inspection shall be made in the

presence of an employer or employer’s designee.

     (2) The employee shall not be permitted to make any copies of nor remove his or her

personnel file from the immediate place of inspection located on the business premises.

     (3) The employer may charge the employee a fee reasonably related to the cost of supplying

copies of requested documents.

     (2) "Employee'' means a person currently employed or formerly employed by an employer.

     (3) ''Employer'' means an individual, corporation, partnership, labor organization,

unincorporated association, the state and all political subdivisions of the state, or any other legal

business, public or private, or commercial entity employing one or more employees, including

agents of the employer.

     (4) ''Personnel records'', means a record kept by an employer that identifies an employee,

to the extent that the record is used or has been used, or may affect or be used relative to that

employee's qualifications for employment, promotion, transfer, additional compensation,

disciplinary action or termination. A personnel record shall include a record in the possession of a

person, corporation, partnership or other association that has a contractual agreement with the

employer to keep or supply a personnel record as provided in this section. Without limiting the

applicability or generality of the foregoing, all of the following written information or documents

to the extent prepared by an employer of one or more employees regarding an employee shall be

included in the personnel record for that employee: the name, address, date of birth, job title and

description; rate of pay and any other compensation paid to the employee; starting date of

employment; the job application of the employee; resumes or other forms of employment inquiry

submitted to the employer in response to his/her advertisement by the employee; all employee

performance evaluations, including, but not limited to, employee evaluation documents; written

warnings of substandard performance; lists of probationary periods; waivers by the employee;

copies of dated termination notices; any other documents relating to disciplinary action regarding

the employee. A personnel record shall be maintained electronically, in typewritten or printed form,

or may be handwritten in indelible ink.

     (4)(5) This section does not apply to records of an employee relating to the investigation

of a possible criminal offense or records prepared for use in any civil, criminal, or grievance

proceedings, any letter of reference, recommendations, managerial records kept or used only by the

employer, confidential reports from previous employers, and managerial planning records.

     (6) An employer shall retain the complete personnel records of an employee as described

in subsection (a)(4) of this section without deletions or expungement of information from the date

of employment of an employee to a date three (3) years after the termination of employment by the

employee with the employer. In any cause of action brought by an employee against such employer

of in any administrative or judicial proceeding, including, but not limited to, the Rhode Island

commission for human rights, the Rhode Island department of labor and training, the Rhode Island

office of the attorney general, or a court of appropriate jurisdiction, the employer shall retain any

personnel records required to be kept under this section which is relevant to such action until the

final disposition thereof.

     (b) Employers are not required to permit an inspection of any employee’s personnel file or

records or to provide a copy of personnel records to the employee on more than three (3) occasions

in any calendar year; provided, however, that the notification and review caused by the placing of

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negative information in the personnel record shall not be deemed to be one of the three (3) annually

permitted reviews and copies.

     (c) An employer that, upon request by a prospective employer or a current or former

employee, provides fair and unbiased information about a current or former employee’s job

performance is presumed to be acting in good faith and is immune from civil liability for the

disclosure and the consequences of the disclosure. The presumption of good faith is rebuttable upon

a showing by a preponderance of the evidence that the information disclosed was:

     (1) Knowingly false;

     (2) Deliberately misleading;

     (3) Disclosed for a malicious purpose; or

     (4) Violative of the current or former employee’s civil rights under the employment

discrimination laws in effect at the time of the disclosure.

     28-6.4-2. Violation — Penalties.

     Any employer or any agent of an employer who violates the provisions of this chapter

without just cause § 28-6.4-1 shall be fined not more than one hundred dollars ($100) less than five

hundred ($500) nor more than two thousand five hundred dollars ($2,500) which shall be paid to

the Rhode Island department of labor and training. In determining the amount of any penalty

imposed under this section, the director, or designee shall consider the size of the employer's

business; the good faith of the employer; the gravity of the violation; the history of previous

violations; and whether or not the violation was an innocent mistake or willful.

     Any employer who fails to allow inspection of personnel records or to provide copies of

personnel records pursuant to the provisions of § 28-6.4-1 shall be liable to the employee for

liquidated damages of five hundred dollars ($500) in addition to any other relief provided under §

28-14-19.2.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- INSPECTION OF PERSONNEL

FILES

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     This act would amend the definitions of the inspection of personnel files. The act would

also amend the penalties by increasing them to not less than five hundred dollars ($500) nor more

than two thousand five hundred dollars ($2,500).

     This act would take effect upon passage.

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