Washington Amends Employee Personnel File Access Laws

The Washington Legislature has passed a new law affecting employers’ obligations related to employee personnel files.  The new law amends RCW 49.12.240 and 49.12.250 in four important ways:

1. The law amends RCW 49.12.240 to create a definition of the term “personnel file” for the first time. The term “personnel file” includes the following types of records, if the employer creates such records:

• • All job application records;
  • All performance evaluations;
  • All non-active or closed disciplinary records;
  • All leave and reasonable accommodation records;
  • All payroll records; and
  • All employment agreements.

The law does not require employers to retain or create personnel records, though employers may have an obligation to create certain categories of records (such as payroll records) under other applicable laws.

2. The law amends RCW 49.12.250 to require employers to produce employees’ personnel files within 21 calendar days of an employee’s or former employee’s request. Until now, employers had to produce these records within a “reasonable time,” which the Washington Department of Labor and Industries previously interpreted to mean 10 days.

3. The law amends RCW 49.12.250 to require employers, upon written request, to furnish former employees with a written statement stating the date of the former employee’s discharge; whether the employer had a reason for the discharge; and if so, the reason for the discharge. A variation of this requirement already exists under WAC 296-126-050.

4. The law also creates a new private right of action allowing employees to recover attorney’s fees and statutory damages for their employer’s non-compliance. Before suing, however, the employee must give the employer five calendar days’ notice of intent to sue. The notice must inform the employer that the employee or former employee has the right to bring a legal action. It also must give the employer the initial request for a copy of the personnel file.

The law sets nominal statutory damages if the employer does not produce the personnel file or the employee’s discharge information within a prescribed time: $250 if the personnel file or discharge statement is not provided within 21 calendar days of the request; $500 if not provided within 28 days of the request; and $1,000 if provided after 35 calendar days of the request. Finally, the law sets a penalty of $500 for any other violation of RCW 49.12.250(1).

The bill is expected to be signed into law by Governor Ferguson in the coming weeks.

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