Mass. Legislature Amends Personnel Records Statute

Unbeknownst to just about everyone, buried deep within the recently enacted “Act Relative to Economic Development Reorganization” is language that significantly amends the Massachusetts Personnel Records Statute (Chapter 149, Section 52C), placing new administrative burdens on Massachusetts employers. Under the amendment, which became effective August 1, 2010, employers are now obligated to “notify an employee within 10 days of the employer placing in the employee’s personnel record any information to the extent that the information is, has been used or may be used to negatively affect the employee’s qualifications for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action.” Translated into English, this means that any time a document is created that could negatively impact an employee’s employment, and the employer retains the document, the employer must notify the employee of it within ten days of the document’s placement in the employee’s personnel record.

The term “personnel record” is defined very broadly. It includes any document kept by an employer that is or has been used or may be used to affect an employee’s employment, promotion, transfer, compensation, or discipline. This includes documents that may be maintained some place other than in the employee’s formal personnel file; for example, in files kept by an individual manager or supervisor. Consequently, this amendment could be interpreted as requiring employers to notify employees any time a manager drafts a quick note to herself about problems with an employee’s performance, or two supervisors exchange emails debating whether an employee should be promoted. Arguably, as long as the document is retained in some fashion – either in hard copy or electronically – the amendment requires that the employee in question be notified of it.

In a small nod to employers, the amendment limits the number of times an employee may ask to review his personnel record to twice during a calendar year. However, this limitation does not apply to record reviews that stem from the placement of a negative record in an employee’s file. The amendment does not change the employer’s obligation to produce the personnel record within five business days of the employee’s request. Failure to comply with the statute can result in a fine of between $500 and $2,500 for each violation. The Attorney General is responsible for enforcing the statute.

The personnel records amendment raises a number of significant questions for employers. What constitutes negative information? Does it really include a manager’s quick note about an employee written on a piece of scrap paper? And does tossing the note into her desk drawer mean that the manager has “placed” it in the employee’s personnel record? If so, what form does the employee notification take? Must a copy of the note be shown to the employee, or is it enough simply to notify him that the note was made? Unfortunately, the amendment does not come with an instruction manual, so only time will tell. Until these issues are settled by a judge, or the Attorney General issues some guidance, we recommend that employers proceed cautiously. All documents concerning an employee’s employment – positive and negative –should be kept in a centralized human resources file. Managers and supervisors should be cautioned that keeping their own “shadow” personnel records does not alleviate the obligation to notify employees of negative information that may be placed in those files. Procedures should be developed for notifying employees any time negative information is added to their personnel records. Such procedures should be clearly communicated to managers, supervisors, and anyone else who may handle employee information.

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