E-Alerts

Noteworthy Changes in Massachusetts Law Regarding Personnel Records: Effective Immediately

Hidden within an economic development bill signed by Governor Patrick on August 6, 2010 was an amendment to the Massachusetts Personnel Records Statute, Mass. Gen. Laws c. 149, § 52C.  The amendment added two important provisions to the existing law:  Massachusetts employers must notify an employee whenever any negative information is placed in an employee’s personnel file; and Massachusetts employees are limited to two opportunities per calendar year to access their personnel files.  Whether these changes in the law will have a significant impact on a particular employer will depend on how the employer’s personnel files are currently compiled and maintained.  Therefore, we encourage all employers in Massachusetts to take a close look at how they manage personnel files to ensure compliance with both the existing requirements and the new requirements.

Existing Requirements

• Employers are required to maintain personnel records and to make such records available to employees within 5 days of receiving a written request.

• A “personnel record” is defined as:

“a record kept by an employer that identifies an employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation or disciplinary action.”

• An employee who disagrees with any information contained in a personnel record may submit a written statement which must be included in the personnel file.

• Employers with twenty or more employees must maintain personnel records for three years after termination of employment.

• The personnel records law is enforced by the Attorney General.  Violations are punishable by a fine of not less than $500 and not more than $2500. 

New Requirements

• Massachusetts employers must “notify an employee within 10 days” of “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.”

• Employers are not required to make personnel files available to employees “on more than 2 separate occasions in a calendar year.”  However, if an employee reviews a personnel file after being notified that negative information was placed in the file, such review will not count as one of the two occasions allowed per calendar year.

Impact of the Changes in the Law

Significantly, the recent amendments to the personnel record law do not change the definition of personnel record.  The same documents that have always been required to be included in a personnel file are still required to be included in a personnel file.

Many employers routinely place copies of disciplinary action forms and performance evaluations in personnel files.  In addition, many employers have employees sign such documents before placing them in the employee’s personnel file.  If both of these standard practices are followed, an employer will meet both the existing requirements of the law and the new requirements.  Employers that either do not place such documents in the personnel file or that do not share such documents with their employees will need to change their practices as soon as possible to ensure compliance with the law. 

The more difficult question is what to do with informal documentation of employee issues that do not rise to the level of disciplinary action.  For example, emails between managers regarding emerging attendance issues or a handwritten note by a supervisor regarding an employee’s increasingly negative attitude are common in many workplaces.  Should such notes be placed in an employee’s file?  Do they constitute negative information that is subject to the notification requirement?  Unfortunately, neither the old statute nor the recent amendments provide helpful guidance on this important issue.

A strict reading of the statute requires that any information that “may be used” against an employee must be placed in the personnel file.  Now, as a result of the recent amendments, employees must also be notified once such negative information is placed in the personnel file.  We encourage employers to carefully consider how to achieve compliance with these requirements.  Flooding employees with negative information just because you may someday want to use it against them in a more formal way may be unnecessary.  And, yet, an employer that uses information regarding a prior incident to take action against an employee may violate the personnel records law if such information was not previously placed in a personnel file and disclosed to an employee.  The key concept to consider with respect to your practices and policies is that the employer’s use or potential use of information is the bright line test for determining whether such information constitutes a personnel record.  Information, even negative information, that is not used against an employee does not have to go into the personnel file and does not have to be disclosed to an employee.

Recommendations for Employers

The amendment to the personnel record law requires only that an employer notify an employee that negative information has been placed in the file.  There is no requirement that an employee sign the negative document.  Employers can certainly meet the notification requirement by simply telling an employee that something negative was placed in the employee’s file.  We recommend, however, that such notification be made in writing and retained as evidence of compliance with the law.  As a practical matter, it is likely that employees who are notified about negative information will ask to review their own personnel file.  Therefore, it may be more efficient to simply give an employee a copy of the negative information and obtain the employee’s signature to verify notification.

There are a number of steps that employers ought to tackle promptly in order to achieve compliance with the new amendments.  All performance management documents ought to include an opportunity for an employee’s signature as well as an at-will disclaimer and a variety of other best practices recommendations for ideal performance management documentation.  We recommend that each employer create and maintain templates for counseling, written warning and final written warning documents.  In addition, employers ought to use this opportunity to analyze their practices with respect to termination memoranda, as termination memoranda are particularly complex in the context of these recent amendments.  Employers are devising different approaches in order to comply with the notification requirements, and there is no one-size-fits-all solution, but we do recommend that each employer identify and implement a uniform approach within their own organization.  In addition, all personnel file policies need to be updated in order to achieve compliance with the recent amendments.  Finally, the Firm has prepared guidelines to assist clients with the requirements for what must be included and excluded from personnel files in Massachusetts.  Please contact us if you would like a copy of these guidelines for Massachusetts or another state.

The recent changes to the Massachusetts Personnel Record law provide a compelling reason for Massachusetts employers to review their practices and policies generally to ensure that employee personnel files are compiled and maintained in accordance with the law.  In addition, Massachusetts employers should revise their practices and policies as necessary to ensure that employees are notified of negative information that is placed in their personnel file within 10 days.

Please let us know if you have any questions about the new Massachusetts law, comparable laws of other states, or how best to revise your handbook and other policies to ensure compliance with these new requirements.