Massachusetts Amends Personnel Records Statute To Impose An Affirmative Duty On Employers To Notify Employees When Adding Negative Information To Personnel Records

On August 5, 2010, Governor Deval Patrick signed into law An Act Relative To Economic Development Reorganization (the “Bill”), Chapter 240 of the Acts of 2010, which seeks to stimulate job growth and coordinate the economic development activities funded by the Commonwealth.  Hidden within the text is an amendment to the Massachusetts Personnel Records Statute, M.G.L. c. 149, §52C, which may change the way Massachusetts employers maintain personnel records in important ways.

The prior statute imposed a passive duty on employers.  The statute required that an employer provide an employee with access to his or her personnel record if the employee submitted a request to review the record.  In contrast, the amended statute places an affirmative duty on employers.  Employers must now notify employees within ten days of placing information that “may” negatively affect the employee’s employment or could possibly lead to disciplinary action into the employee’s personnel record.

Because an employee’s personnel record includes any document kept by the employer that identifies the employee and that is relevant to the employee’s “qualifications for employment, promotion, transfer, additional compensation or disciplinary action,” this new amendment has a far reaching effect.  Read in the extreme, employee advocates might argue that an email between two managers concerning a subordinate’s performance, which is preserved, would trigger the notice provision.  While we hope the courts will provide a more reasonable reading, the Legislature has done little to indicate where the lines should be drawn.

On the other side of the ledger, the amendment also limits the frequency of employee requests to twice per year.  However, reviews stemming from the placement of negative information in the personnel record do not count as one of the two annually permitted reviews.

Employers with unionized employees should take careful note of the amendment’s new requirements as they interact with collective bargaining agreements and may give rise to federal preemption arguments.

This section of the Bill became effective on August 1, 2010.  Employers, therefore, should immediately begin providing notice to employees within ten days of placing negative information into their personnel records.  While employees cannot sue for violations of the personnel records statute, the Attorney General enforces the statute and may seek fines of between $500 and $2,500 for each violation.

Employers are encouraged to contact their Seyfarth Shaw attorney if they have any questions about this amended statute or for assistance in developing a new personnel record policy.

For more information, please contact the Seyfarth attorney with whom you work or any Labor & Employment attorney on our website.