First Regular Session Seventieth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 15-0948.01 Bart Miller x2173 HOUSE BILL 15-1342 HOUSE SPONSORSHIP Salazar, Esgar, Ginal, Melton SENATE SPONSORSHIP (None), House Committees Senate Committees Judiciary A BILL FOR AN ACT Concerning the right of private-sector employees to inspect their personnel files. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill allows an employee or former employee to request that his or her private-sector employer, except for a financial institution, permit the employee or former employee to inspect or request copies of the employee or former employee's personnel file within 30 days of a written request. Employees or former employees are required to pay reasonable costs of duplication. The bill specifies exceptions to the requirement. The bill authorizes an employee or former employee to provide written rebuttal information to the employer or former employer, requires information to be added to the employee or former employee's personnel file, and to accompany any transmittal or disclosure from the file made to a third party. The bill provides remedies to an employee or former employee if an employer or former employer fails to comply with the requirements of the bill. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. Legislative declaration. The general assembly finds, determines, and declares that it is the public policy of this state that an employee have access to his or her personnel files maintained by a current or former employer. The general assembly intends this policy to foster an environment of open communication between employers and employees regarding the employment status of employees and to deter frivolous lawsuits against employers. SECTION 2. In Colorado Revised Statutes, add 8-2-129 as follows: 8-2-129. Access to personnel files and records - penalties. (1) An employee or former employee may request that his or her employer or former employer permit the employee or former employee to inspect or request copies of his or her personnel file. The employer shall allow the employee or former employee access to the personnel file within thirty days after receipt of a written request. (2) Inspection shall take place during regular business hours at a location at or reasonably near the employee's or former employee's place of employment. (3) An employer is not required to permit inspection and copying of an employee's or former employee's personnel file more than once in a calendar year unless: (a) The employee requests to inspect or copy the personnel file within a twelve-month period after separation from employment when the employee had made another request within the calendar year while actively employed; or (b) If disciplinary action has been taken against the employee or former employee, and the employee's or former employee's personnel file was previously inspected and copied once in a calendar year, the employer shall permit the employee or former employee to inspect and copy his or her personnel file. (4) An employee or former employee may provide written rebuttal information to the employer or former employer. The rebuttal information shall be added to, and retained in, the employee's or former employee's personnel file and shall accompany any transmittal or disclosure from the file made to a third party. (5) The employer may require an employee or former employee who requests copies of material under this section to pay the reasonable cost of duplication. (6) The employer shall certify the accuracy of the copies by attaching a letter to that effect to the copies. (7) The employer shall certify that all responsive documents have been made available to the employee or former employee and that no additional documents exist. (8) The employer may certify that the employee or former employee chose not to copy certain documents. (9) The following remedies shall be available to an employee or former employee if an employer fails to comply with this section: (a) Personnel information that was not included in the personnel file at the time the employee or former employee inspected or copied the personnel file, but that was the type of document that should have been included in the personnel file, shall not be used by the employer in a judicial or quasi-judicial proceeding. Relevant material that should have been included in the personnel file may be used by the employee or former employee, at his or her request. (b) The employee or former employee is entitled to attorney fees and costs if he or she prevails in a civil action to obtain a court order requiring the production of documents from the personnel file or in a motion to compel the production of documents in a civil action to which the documents are relevant. (c) In any proceeding described in paragraph (a) or (b) of this subsection (9), a court or administrative law judge has discretion to impose a penalty of up to one hundred dollars per day, to be paid by the employer to the employee or former employee, for every day, beginning on the thirty-first day after the employer received the written request, that the employer failed to comply with the request as provided in subsection (1) of this section. The court or an administrative law judge has discretion to impose additional penalties, not to exceed ten thousand dollars, if the employee can demonstrate intent on the part of the employer to conceal documents that should have been contained in the personnel file at the time the employee inspected or copied his or her personnel file. (10) As used in this section: (a) "Employee" means an employee as defined in section 8-1-101 (6). (b) "Employer" means any individual, corporation, partnership, labor organization, unincorporated association, and every other entity employing one or more persons within the state; except that "employer" does not mean the state of Colorado, any agency or institution of the state, or any political subdivision of the state. (c) "Former employee" means a person who was formerly in the service of an employer, not including any officers or enlisted personnel of the national guard of the state of Colorado. (d) "Personnel file" means documents or records retained by the employer regarding an employee or former employee that concern qualifications for employment, promotion, transfer, compensation, termination, or discipline. "Personnel file" does not include documents or records required to be placed or maintained in a separate file by federal law or regulation or documents or records pertaining to an active criminal investigation or an active disciplinary investigation by the employer or a regulatory agency. (11) This section is intended to supplement, not supplant, rights, claims, and employment-related benefits conferred on an employee or former employee and does not diminish any right or claim arising under collective bargaining agreements, common law, or statute that may be provided by law. (12) Nothing in this section prohibits an employer from granting additional access or benefits to employees or former employees. (13) Financial institutions, including banks, trust companies, savings institutions, or credit unions chartered and supervised under state or federal law, are exempt from compliance with this section. SECTION 3. Act subject to petition - effective date. This act takes effect January 1, 2016; except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within the ninety-day period after final adjournment of the general assembly, then the act, item, section, or part will not take effect unless approved by the people at the general election to be held in November 2016 and, in such case, will take effect on the date of the official declaration of the vote thereon by the governor.