August 30, 2010

Massachusetts Personnel Records Statute Amended to Require Employers to Notify Employees When Negative Information Is Placed in Personnel Records

Massachusetts recently enacted an economic development statute which contains an important amendment to the Massachusetts Personnel Records Statute, G.L. c. 149, § 52C. The Personnel Records Statute now requires employers to notify employees within 10 days of placing in an employee’s “personnel record” negative information that is, has been or may be used to negatively affect the employee’s qualification for employment, promotion, transfer, compensation or the possibility of disciplinary action.

The Personnel Records Statute requires Massachusetts employers of 20 or more employees to retain the complete personnel record of an employee without deletions of information from the date of hire to a date at least three years after termination. The statute requires employers to provide an employee with an opportunity to review his or her personnel record within five business days of the employee’s written request. The amendment to the statute makes clear that an employee may only review his or her personnel record twice per year. However, any review requested by an employee after being notified that negative information has been placed in his or her personnel record will not be considered to be one of the two annually permitted reviews.

It is important to note that the Personnel Records Statute contains a broader definition of “personnel record” than what ordinarily might be included in the employee’s “personnel file” as typically maintained by an employer’s human resources department. The statute defines a “personnel record” to include all documents kept by an employer that are or have been used “or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation or disciplinary action.” This definition is inherently vague, and its interpretation may depend on an employer’s determination of what information it elects to consider in making a variety of personnel decisions. Moreover, the term “negative information” is ambiguous and undefined. The statute as amended does appear to prohibit managers and supervisors from keeping secret disciplinary files not shared with their employees which the manager intends to use to justify disciplining an employee. Also, in some circumstances, absent clarifying employer policy, the notification requirement might conceivably be triggered by a manager noting something negative regarding an employee in an email, to the extent that the manager’s document is intended to be used to evaluate the employee in connection with compensation, eligibility for promotion, disciplinary action or termination.

We recommend that all Massachusetts employers affected by the statute promptly consult with counsel to develop policies or practices that, consistent with their corporate culture, will effectuate compliance. For example, such policies might direct managers to notify the Human Resources Department when they create or supplement a document containing negative information about an employee with the intent of using that document to evaluate the employee for purposes of considering advancement, promotion, compensation, disciplinary action or termination. Human Resources would assume responsibility for determining the appropriate method of complying with the notification requirement under the particular circumstances.

The Attorney General is charged with enforcing the statute and may impose fines between $500 and $2,500 for each violation. Although an employee may file a civil action for an employer’s breach of the personnel record statute, the Massachusetts Court of Appeals, in the case of Kessler v. Cambridge Health Alliance, previously has indicated that the statutory remedy afforded to employees who have not had their full personnel records produced is limited to an order requiring the employer to produce the full record and to provide the employee with the opportunity to comment, correct, or expunge allegedly incorrect or false information. For more information on the Kessler case, see Goodwin Procter’s February 22, 2005 Labor Alert.

Although signed into law on August 5, the amendment became effective August 1, 2010. Clients are encouraged to contact employment counsel to discuss appropriate measures to achieve compliance with this new requirement.