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:

§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.