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H. 3042
STATUS INFORMATION
General Bill
Sponsors: Reps. Cobb-Hunter and Whipper
Document Path: l:\council\bills\gjk\20018sd05.doc
Introduced in the House on January 11, 2005
Currently residing in the House Committee on Labor, Commerce and Industry
Summary: Employee has right to examine or obtain copies of his personnel file
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
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12/8/2004 House Prefiled
12/8/2004 House Referred to Committee on Labor, Commerce and Industry
1/11/2005 House Introduced and read first time HJ-62
1/11/2005 House Referred to Committee on Labor, Commerce and Industry
HJ-62
2/9/2005 House Member(s) request name added as sponsor: Whipper
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND CHAPTER 1, TITLE 41, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE GENERAL PROVISIONS OF LABOR AND EMPLOYMENT LAW, BY ADDING SECTION 41-1-115 SO AS TO ESTABLISH FOR A PERSON EMPLOYED BY AN EMPLOYER DOING BUSINESS OR EMPLOYING RESIDENTS OF THIS STATE THE RIGHT TO EXAMINE AND OBTAIN COPIES OF ALL OF THE CONTENTS OF HIS PERSONNEL RECORD AS MAINTAINED BY THAT EMPLOYER, TO PROVIDE FOR THE TIME, PLACE, AND MANNER WHICH EMPLOYERS AND EMPLOYEES MUST FOLLOW RELATING TO ACCESS TO PERSONNEL RECORDS, TO PROVIDE FOR FEES FOR DEFRAYING THE COST OF GRANTING ACCESS TO SUCH PERSONNEL FILE OR MAKING COPIES, TO PROVIDE FOR CERTAIN FINES WHICH MAY BE LEVIED BY THE DEPARTMENT OF LABOR, LICENSING AND REGULATION, TO PROVIDE A CIVIL REMEDY FOR VIOLATIONS, AND TO PROVIDE FOR RELATED MATTERS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The General Assembly recognizes that an employee of an organization or entity doing business in or employing citizens of South Carolina has the inherent right to examine and obtain copies of the contents of his own personnel record at any reasonable time. Therefore, the intent of this act is to establish this employee right and to set forth guidelines for that right. The purpose and intent of this act are the same that apply to citizen rights governing access to credit files to ensure the accuracy and completeness of such files.
SECTION 2. Chapter 1, Title 41 of the 1976 Code is amended by adding:
"Section 41-1-115. (A) For the purposes of this section:
(1) an 'employee' is a person employed in any manner by an employer, as defined in item (2), including employees who are on leave of absence or who have been temporarily laid off with reemployment rights;
(2) an 'employer' is a person, partnership, corporation, organization, or entity, public or private, that is located in this State, does business in this State, or employs residents of this State.
(B) An employee may inspect and obtain copies of the contents of his personnel record maintained by his employer including, but not limited to, information used to determine qualifications for employment, promotion, additional compensation, transfer, layoffs, or termination or other disciplinary action. An employee may inspect and obtain copies although they are in the possession of an entity under contract to his employer to keep or supply a personnel record. An employee does not have a right under this section to inspect investigative records on possible criminal offenses, letters of reference, test documents other than cumulative test scores, or personal information about persons other than the employee, the disclosure of which would constitute a clear invasion of the other person's privacy. The employee must make a written or oral request for his personnel record during the normal business hours of his employer.
(C) An employer must comply with a request within ten days after receipt of the request. An employer, in complying with the request, must allow an employee to inspect and receive copies of his personnel record in its entirety with no information removed, edited, expunged, or otherwise altered, except as permitted in subsection (B) and as required by law. An employer must allow an employee to inspect the personnel record at a place that is reasonably near an employee's workplace and during the normal business hours of an employer. The employer may provide access during a time and at a place chosen by the employee. An employer may require the inspection to take place in the presence of a designated company official. An employer may take appropriate action to protect the personnel record from loss, damage, or alteration. An employer may charge a copying fee that does not exceed the actual costs of duplication. An employer is not required to allow an employee to inspect his personnel record on more than two occasions in any calendar year. An employer must allow an employee who has separated employment to inspect his personnel record in the same manner described herein, except that an employee may only inspect his personnel record once anytime within the first year after separation.
(D) If the employee disagrees with information in his personnel record, the employer may correct it or remove it from the personnel record. If the employer does not remove or correct the information, the employee may submit a written rebuttal. The employer must maintain the rebuttal as part of the personnel record and disclose it when the personnel record is made available to third parties. The inclusion of the rebuttal does not imply or create the presumption that the employer agrees with its content.
(E) An employer must retain the complete personnel record at least three years after termination.
(F) If any employer fails to comply with the request authorized pursuant to subsection (B) within the designated time provided by subsection (C), an employee may, upon furnishing proof of a written notice to the employer, file a complaint with the South Carolina Department of Labor, Licensing and Regulation. The department may, in its discretion, levy a fine against the employer, not to exceed two hundred dollars a day for every day the employer fails to comply with the request. All fines levied and collected pursuant to this subsection must be remitted by the department to the State Treasurer for deposit in the general fund of the State. Nothing contained in this subsection may be construed to deny any employer its rights or remedies under law.
(G) If any employer fails to comply with the provisions of this section, the employee may file a civil action within one year of the date of the discovery of the alleged violation. The employee may be awarded actual damages, reasonable attorney's fees, and costs.
(H) An employer may not discharge or in any manner discriminate against an employee who:
(1) makes a complaint or gives information about an employer's alleged violation of this section;
(2) causes or is about to cause a proceeding to be instituted against the employer; or
(3) has testified or is about to testify in a proceeding concerning an employer violation.
If an employer violates the provisions of this subsection, the employee may file a civil action within two years of the date of the discovery of the alleged violation, and the employee may be awarded actual damages, back pay, reinstatement or other equitable relief, reasonable attorney's fees, and costs."
SECTION 3. This act takes effect upon approval by the Governor.
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