|August 30, 2010|
Previously published on August 20, 2010
Tucked into the text of new Massachusetts legislation intended to promote job growth and long-term economic recovery is an amendment to the Massachusetts personnel records law that will change employers’ responsibilities significantly. The amendment places an affirmative duty on employers to notify employees when adding to a “personnel record” new information that could negatively affect the employee’s employment or lead to disciplinary action. (A “personnel record” encompasses not only an employee’s formal personnel file, but also almost any other employment-related record about the employee, no matter where it is stored, including, for example, a supervisor’s desk.)
Under “An Act Relative to Economic Development Reorganization,” signed by Governor Deval Patrick on August 5, 2010, the amendment to the Massachusetts Personnel Records Statute, Mass. Gen. Laws c. 149, § 52C, took effect on August 1, 2010. Employers’ procedures must be changed immediately to give notice to employees within 10 days of placing negative information into their personnel records.
At present, there exists no information beyond the words of the amendment itself regarding the circumstances that will trigger an employer’s obligation to notify an employee. However, because the amendment broadly requires employers to notify employees about “any information” placed in the employee’s personnel record that “may” have a negative impact on an employee’s employment, if the amendment is interpreted literally, information such as negative e-mails from a supervisor to Human Resources about an employee, or a supervisor’s personal notes about a negative incident involving an employee certainly would prompt notification.
In addition, because the definition of “personnel record” is not confined to the employee’s formal personnel file, the notification requirement will apply to negative information kept anywhere, including a supervisor’s notes kept in his desk drawer.
The amendment also effectuates an additional change in the statute by limiting an employee’s ability to inspect his or her personnel file to twice in one calendar year. (Prior to the amendment an employee’s right to review his or her personnel file was unlimited.) However, a file review requested because of notification about newly added negative information does not count toward the twice-per-year limit.