HB4048 H JUD AM 2-13 #1
The Committee on the Judiciary moves to amend the bill on page
one, following the enacting clause, by striking out the remainder
of the bill and inserting in lieu thereof the following language:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §21-3-22, to read as
follows:
CHAPTER 21. LABOR.
ARTICLE 3. SAFETY AND WELFARE OF EMPLOYEES.
§21-3-22. Right of employees to inspect and copy personnel file;
definitions; employer's right to retain personnel
files; adverse record entries; notice and remedies.
(a) As used in this section:
(1) "Employer" means an individual, corporation, partnership,
labor organization, unincorporated association, the state, an
agency of the state, any political subdivision of the state,
municipal corporation, county, or any other legal, business, or
commercial entity which has twelve or more employees for twenty or
more calendar weeks in the calendar year. The term employer does
not include the federal government.
(2) "Employee" means a person who performs services for hire
for an employer, provided that the employee is currently employed,
or formerly employed by an employer with in the past year. The
term does not include independent contractor.
(3) "Employee assistance program" means a program sponsored or authorized by an employer, intended to assist employees in
identifying and resolving personal concerns including, but not
limited to, health, marital, family, financial, alcohol, drug,
gambling, legal, emotional, stress, or other personal issues that
may affect job performance.
(4) "Independent contractor" means a person who performs
services for another person under an express or implied agreement
and who is not subject to the other's control, or right to control,
the manner and means of performing the services.
(5) "Medical records" has the same definition as that term is
defined in subsection(p), section three, chapter thirty, article
sixteen of the Code of West Virginia, 1931.
(6) "Personnel file" means papers, documents and reports
pertaining to a particular employee which are used or have been
used by an employer to determine such employee's eligibility for
employment, promotion, and additional compensation; disciplinary or
other adverse personnel action; applications for employment;
medical records; employee evaluations or reports relating to such
employee's character, credit and work habits; wage or salary
history; notices of commendation, warning, and termination;
authorization for deduction or withholding of pay; leave records;
employment history with the employer; salary and compensation
history; attendance records; performance evaluations; health care
benefit records; fringe benefit records; and any other employment
benefit records. A personnel record shall include a record in the
possession of a person, corporation, partnership, or other association who has a contractual agreement with the employer to
keep or supply a personnel file.
(b) Provided such memoranda, documents or information are not
used to determine an employee's eligibility for employment,
promotion, additional compensation, transfer, termination,
disciplinary or other adverse personnel action, personnel file does
not mean:
(1) stock option or management bonus plan records;
(2) materials which are used by the employer to plan for
future operations, such as, but not limited to, information
relating to the employer's salary system, staff planning,
comments, judgments, recommendations, or ratings concerning
expansion, downsizing, reorganization, job restructuring, future
compensation plans, promotion plans, and job assignments;
(3) test information, the disclosure of which would invalidate
the test, but not to include final employee test scores or test
results;
(4) documents which are being developed or prepared for use
in civil, criminal or grievance procedures, not discoverable in a
workers' compensation, grievance, arbitration, administrative,
judicial or quasi-judicial proceeding, including, but not limited
to, documents which constitute attorney work-product or documents
which are subject to the attorney client privilege;
(5) memoranda, documents or collections of information
relating to investigations of losses, misconduct or suspected
crimes;
(6) investigative information maintained pursuant to
government requirements;
(7) any portion of a written or transcribed statement by a
coworker of the employee that concerns the job performance or job-
related misconduct of the employee that discloses the identity of
the co-worker by name, inference or otherwise;
(8) written comments or data of a personal nature about a
person other than the employee, if disclosure of the information
would constitute an intrusion upon the other person's privacy;
(9) written references respecting the employee, including
letters of reference supplied to an employer by another person if
the identity of the person making the reference would be disclosed;
(10) information available to the employee under the Fair
Credit Reporting Act (15 U.S.C. §1681, et seq.); and,
(11) records of an employee assistance program.
(c) Every employee has the right to inspect his or her
personnel file, if the file exists. Inspection shall take place
during regular business hours at a location at or reasonably near
the employee's place of employment.
(d) Each employer shall, within thirty days after receipt of
a written request from an employee, provide the employee with a
copy of all or any requested portion of his or her personnel file,
provided the request reasonably identifies the materials to be
copied. An employer and employee may agree to extend these time
frames, and if any such agreement is reached, it shall be in
writing. The employer may charge a fee of twenty-five cents per page for copying the file or any part of the file, and an
administrative search fee of ten dollars.
(e) An employer may not be required to provide a copy of an
employee's personnel file more than two times in a calendar year,
unless the employee requesting the personnel file has been
involuntarily terminated. If an employee has been involuntarily
terminated, upon written request of the former employee after
notice of the involuntary termination, the employer will provide
another opportunity to review or request a copy of the personnel
file. Within thirty days after receipt of a written request by a
terminated employee, the employer shall furnish a certified copy of
the personnel file. The employer may charge a fee pursuant to
subsection (d). An employer and employee may to extend these time,
and if any such agreement is reached, it shall be in writing
frames.
(f) An employer shall keep an involuntarily terminated
employee's record for not less than one year, or as otherwise
provided by law.
(g) A personnel file is considered the business property of
the employer. The provisions of this section may not be construed
to permit an employee to remove the original of his or her
personnel file or any part of the file from the employer's premises
or where it is made available for inspection. Each employer
retains the right to protect his or her files from loss, damage or
alteration to insure their integrity. Each employer may require
that inspection of any personnel file take place in the presence of a designated official.
(h) If there is a disagreement about the information contained
in a personnel file, the employee may submit a rebuttal or written
statement of less than five pages per item of disagreement
explaining the employee's position. The employee statement shall
be included when the information in question is disclosed to a
third party.
(i) In addition to other remedies provided by law, if an
employer violates this section, the employee may commence a civil
action to compel compliance, and for actual damages, plus costs and
attorneys fees.
(j) The employer shall notify all employees in writing of
their rights under this section.
(k) This section does not supersede the terms of a collective
bargaining agreement.
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