September 15, 2010

New Massachusetts Law Requires Employers to Notify Employees When "Negative" Information is Placed in Their Personnel Records

Holland & Knight Alert
Miriam McKendall

Massachusetts employers must be aware of a new amendment to the Massachusetts Personnel Record Statute, Massachusetts General Law Chapter 149, §52C, that requires employers to notify employees when certain “negative” information is placed in their personnel records (the Amendment). The Amendment – which was buried within a large piece of legislation, known as An Act Relative To Economic Development Reorganization, signed by Governor Deval Patrick on August 5, 2010 – contains significant new requirements that impact how employers maintain employee personnel records.

What Does the Employer’s Duty to Notify Entail?

Prior to the Amendment, an employer’s duty to provide an employee with access to his or her personnel records was triggered only upon a written request by the employee. However, under the Amendment – which became effective August 1, 2010 – employers are now bound by the following affirmative duty:

An 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.

The Amendment does not mandate that the notification be in writing. However, it is prudent for an employer to memorialize its compliance with the notice requirement. This may be accomplished by, among other methods, copying the employee on the negative personnel document at issue, sending a notice to the employee that a particular document has been placed in the employee’s file, or including a notation that indicates when and how the employee received the required notice.

Massachusetts employers must take immediate steps to comply with the notice requirement going forward. In addition, employers should provide prompt notice to any employee who has had negative information placed in his or her personnel record since August 1, 2010, if no notice has yet been provided.

The Massachusetts Attorney General’s Office may impose fines of $500 to $2,500 against employers for each violation of the Personnel Record Statute.

Employees’ Right to Access Their Personnel Records

In addition to the notice requirement and consistent with prior law, the Amendment provides that:

  • an employer receiving a written request from an employee shall provide the employee with an opportunity to review such employee’s personnel record within five business days of such request, and
  • an employee shall be given a copy of the employee’s personnel record within five business days of submission of a written request for such copy to the employer.

In a concession to employers, the Amendment provides that an employer may limit the number of times an employee may request access to his or her personnel records to two separate occasions in a calendar year. However, an employee’s review of his or her personnel records caused by the placing of negative information in the personnel record shall not be deemed to be one of the two annually permitted reviews.

An Important, Unanswered Question

During the short period that has passed since the Amendment became effective, there has been much discussion about what qualifies as the placement of negative information for purposes of the required notice. This critical question is left unanswered in the text of the Amendment. Employee advocates may seek an overly broad application of the Amendment. Many employers may believe that such an approach will be unworkable and not beneficial to either management or employees. What is clear is that all sides are in need of further guidance from the Office of the Attorney General and the courts to understand the scope of the Amendment’s notice requirements.

The Amendment and the recent Massachusetts laws concerning criminal inquiries in employment applications and criminal background checks (described in Holland & Knight’s August 17, 2010 Labor, Employment and Benefits Alert, “The Latest Development in Criminal History Checks: The Massachusetts CORI Reform Act”) highlight the need for Massachusetts employers to review carefully their practices regarding employment documents.

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