This week, the Washington Legislature passed HB 1308, a bill that, if signed into law, will change Washington employer’s responsibilities for personnel file requests. While not yet in effect, the governor will likely sign the bill with no changes, imposing these requirements on Washington employers starting in late July.
Key Changes to the Current Rules
Although Washington employers are no stranger to personnel file requests, HB 1308 changes the current rules in several key ways.
- HB 1308 adds a definition of “personnel file” that was previously absent from RCW 49.12.240. Under that definition, personnel files expressly include all job application records, performance evaluations, nonactive or closed disciplinary records, leave and reasonable accommodation records, payroll records, and employment agreements. While the law does not require employers to create and maintain all of these records, they are part of an employee’s “personnel file” if the employer has them. This does not impact existing obligations on employers to create and maintain some categories of records under other laws (payroll records, for example).
- After a request from a current or former employee, or their designee, employers must provide copies of the employee’s personnel file within 21 days at no cost. Before this change, employers had a “reasonable time” to produce such records, which the Washington Department of Labor and Industries (LNI) interpreted to mean 10 days. While this requirement imposes a firm deadline, it more than doubles the time to produce records than what LNI currently requires.
- After a written request, the employer has 21 days to provide a signed written statement stating the effective date of discharge, whether there were reasons for the discharge, and, if so, what the reasons were. A variation of this requirement exists in WAC 296-126-050 and imposes a shorter 10-day timeline. Until HB 1308 goes into effect, the 10-day timeline still applies.
- The law creates a new private right of action against employers who do not comply with the above. The law provides for statutory penalties from $250 to $1,000, other equitable relief, and attorneys’ fees and costs. Before filing suit, however, employees must give at least five days’ notice of intent to sue. Notice may be given with the initial request for records, in which case the employee would not be able to file suit until five days after the employer’s failure to produce the records.
Next Steps for Employers
The law is not yet in effect, and the governor could, at least in theory, veto it, but the likely outcome is that these requirements will apply starting in July.
Employers with employees in Washington—which includes remote employees—should take stock of their current retention and storage practices and ensure employee personnel files (as defined), to the extent they are retained, are appropriately stored and accessible. Note, however, that employee medical records, including those related to leaves and accommodations, should still be kept separate from the rest of an employee’s file. Once the bill is signed into law, employers should also update applicable written policies and ensure managerial and HR employees are trained on these new requirements.
