Massachusetts General Laws Chapter 149 § 52C (the “Act”), creates an affirmative obligation for employers to provide notice to employees whenever certain negative information or documents are placed into an employee’s “personnel record.”

Employer Notification Obligation

The Act specifically provides that:

[a]n employer shall 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 qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action.

This represents a dramatic change from the previously existing law, and may require employers to alter how personnel issues are documented.  Pursuant to the Act, every time a document meeting this broad but unclear definition of negative is placed into an employee’s file, the employer is required to notify the employee.

Enforcement

Fortunately for Massachusetts employers, the Act does not create a private right of action for employees to sue for violations of Chapter 149 § 52C.  Instead, the Massachusetts Attorney General may seek $500 to $2,500 from employers for each violation.

Review of Personnel Records

The Act does not alter the requirement that an employer must allow an employee to review his or her personnel record within five (5) business days of receiving a written request to do so.  However, the Act does change the law so that an employer only needs to allow an employee to review his or her personnel file twice a year.  Importantly, a notification and review caused by placing negative information in the personnel record does not count as one of the two permitted annual reviews.  As a result, employees have the right to review their personnel records whenever an employer places negative documents into an employee’s personnel file.

Administrative Issues Created

Along with creating new notification requirements for employers, the Act also requires employers to reevaluate their documentation process.  In addition to documenting incidents, employers will now need to determine whether the document is “placed” in the employee’s “personnel record” and ascertain whether the document contains “negative” information.  Unfortunately, the Act provides little insight into these issues.  For example, the use of the term “personnel record” tends to imply some kind of collection of documents.  However, the term “personnel record” is broadly defined under the Act to include individual documents that contain certain information.  As a result, it is possible that informal emails, not necessarily placed into a collection of documents, between supervisors, or between human resources, triggers the notification obligation.  Other issues also exist.  Does an employer have to give an employee a copy of the document or simply notify an employee the document has been added to the file?  When is a document “placed” in a “personnel record?”  What is “negative” information?  Currently, the legislature, attorney general, and the courts have not provided any guidance on these issues and how they might interpret the Act remains uncertain.

Recommendations

Employers should review and update their human resources protocols and procedures to ensure compliance with the new notification requirement.  Additionally, because several questions remain unanswered, employers should be extremely vigilant when implementing a new personnel records policy to balance the need for compliance with the necessity of documenting human resources’ issues.

At a minimum, an employee’s personal record should include:

  • Name, address and date of birth of the employee;
  • The employee’s job title and description;
  • I-9 and proof ofU.S.citizenship or authorization to work in theU.S.;
  • The employee’s rate of pay and any other compensation information;
  • The starting date of the employee’s employment;
  • The job application of the employee;
  • The employee’s resume or other employment inquiry submitted to the employer by the employee;
  • All of the employee’s performance evaluations (both formal evaluations and other records, such as notes, letters or emails, that are used, have been used or could be used to determine employment, promotion, transfer, compensation or disciplinary action);
  • Written warnings to the employee for substandard performance;
  • Lists of the employee’s probationary periods;
  • Any waivers signed by the employee;
  • Copies of dated termination notices to the employee; and
  • Any other documents related to disciplinary action regarding the employee.

If you have any questions, require assistance with implementing a new personnel records policy, or wish to inquire further about these recent changes in Massachusetts employment law, please contact the business law attorneys at Doherty, Ciechanowski, Dugan & Cannon, P.C.