Industrial Welfare Act.
Under the Industrial Welfare Act (IWA), an employer is required, at least annually, to allow an employee to inspect the employee's own personnel file upon the employee's request.? The employer must make the file available locally within a reasonable period of time after the request.? The Department of Labor and Industries (Department) administers the IWA, and interprets the statute to include former employees who retain the right to inspect their personnel records after termination.? The Department also interprets "reasonable period of time" to generally mean within 10 business days unless good cause is shown that more time is needed.
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The right to inspect does not apply to records of any employee relating to an investigation of possible criminal offenses.? It also does not apply to records or information compiled in preparation of a lawsuit which would not be available to another party under the rules of pretrial discovery for cases pending in superior courts.?
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Regarding payroll records, employers are required to keep, for at least three years, records of each employee's name, address, occupation, dates of employment, rates of pay, hours worked, and other information.? Employers must make that information available to the employee upon request at any reasonable time.? Upon request from a former employee, an employer must furnish within 10 business days a signed, written statement stating the reasons for, and effective date of, discharge.?
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An employee may file a complaint with the Department if the employee has been denied access to their personnel records, and the Department will contact the employer to request compliance.
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Public Records Act.
Under the Public Records Act (PRA), state and local agencies are required to make written records available to the public for inspection and copying upon request, unless an exemption applies. ?Investigative records compiled by an employing agency in connection with pending investigations of unfair practices under the Washington Law Against Discrimination or other possible violations involving discrimination or harassment in employment are exempt. ?After the outcome of the investigation, the employing agency may disclose the records after the names of complainants, accusers, and witnesses are redacted, unless there is consent to disclosure. ?In addition, personal identifying information in an employee personnel file held by a postsecondary educational institution that reveals the identity of witnesses or victims of sexual misconduct committed by an employee of the institution are exempt from public disclosure, unless the victim or witness indicates a desire for disclosure.
The IWA is modified with respect to the requirements to disclose personnel files to employees.
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Personnel Files.? "Personnel file" includes the following records, if the employer creates such records:
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The bill specifically does not create a retention schedule for records, require an employer to create personnel records, or supersede state or federal privacy laws regarding nondisclosure.
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Private Employers.??An employer not subject to the PRA, also referred to as a private employer, must provide a copy of a personnel file within 21 calendar days after the employee, former employee, or their designee requests the file.? The copy must be provided at no cost to the employee, former employee, or their designee.
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A private employer must, within 21 calendar days of receiving a written request from a former employee or their designee, furnish a signed written statement to the former employee or their designee stating the effective date of discharge, whether the employer had a reason for the discharge, and if so, the reasons.?
An employee or former employee may enforce the requirement for a private employer to disclose a personnel record and/or provide a written discharge statement through a private cause of action, which may include equitable relief, statutory damages, and reasonable attorneys' fees and costs.? Prior to bringing an action, the employee or former employee must give a notice of intent to sue to the private employer.? The notice may be provided to the private employer with the initial request for a copy of the personnel file or later on.? An employee or former employee may not commence a lawsuit until five calendar days have elapsed since sending the notice. ?The statutory damages for each violation are:
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Public Employers.? An employer subject to the PRA must provide a copy of the personnel file when requested by an employee, former employee, or their designee in accordance with the procedures and requirements set forth in the PRA.?
The substitute bill makes certain provisions in the underlying bill apply only to employers who are not subject to the PRA (rather than applying those provisions to all employers). This includes the following:
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The substitute bill requires employers subject to the PRA to provide copies of requested personnel files in accordance with the procedures and requirements set forth in the PRA.?
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The requirement to allow employees and former employees access to their personnel files does not supersede state or federal privacy statutes "regarding" nondisclosure, rather than "mandating" nondisclosure.
(In support) This bill is a refined version of a proposal that was brought in the previous legislative session. ?State law currently requires employers to provide their employees with copies of personnel files within 10 days, but the law lacks any enforcement mechanism.? Employers frequently violate this deadline or refuse to disclose these records. ?People have a right to know why their employment was terminated and what is in their records, including noncompetition agreements or other legal documents.??Not having access to records also impacts workers' compensation claims when employees are trying to determine what their true wages are for purposes of calculating time loss benefits. ?The bill ensures that employers comply with the law.? A private right of action is an appropriate remedy for employees and former employees to enforce their rights.?
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(Opposed) A private right of action is not an appropriate remedy. ?It requires both the employee and the employer to retain legal counsel and engage in an onerous dispute.? This generates income for lawyers, but it is not what is best for resolving the situation. ?The state should take a different approach.? It should provide robust education and outreach to employers and employees, and it should establish agency authority to enforce the law.? The Department of Labor and Industries should enforce the law administratively.?
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(Other) Local governments have concerns with the timeframe in the bill and the increased exposure to liability.? The timeframe is insufficient in circumstances where records may be spread across departments or where a smaller local government does not have centralized human resources support.? There should be a way to extend the timeframe when necessary. Local governments are already required to disclose records under the Public Records Act, which also contains a private right of action for enforcement.? The Legislature should consider the alternative of having the Department enforce the disclosure requirements.? This is a lower barrier for employees to resolve disputes.?
(In support) Representative Julia Reed, prime sponsor; Patrick McGah; Jane Dale, Washington State Association for Justice; Jesse Wing, Washington Employment Lawyers Association (WELA); John Traynor, Washington State Labor council, AFL-CIO; and Matthew Hepner, IBEW/ceww.