Buried deep within the "Act Relative to Economic Development Reorganization" recently signed by Governor Deval Patrick is an amendment to the state's Personnel Records Statute that requires Massachusetts employers to affirmatively notify an employee of negative information placed in the employee's personnel record. The amendment, effective August 5, 2010, caught many employers by surprise, and to date the Office of the Attorney General, which is charged with enforcement of the statute, has offered no guidance on how to implement these revisions. We summarize below the most significant aspects of the amendment and offer our recommendations pending guidance from the Attorney General's office or the courts.
Under the Personnel Records Statute, Mass. Gen. Laws c. 149, § 52C, a "personnel record" is defined to include not only formal personnel files maintained by Human Resources but also informal supervisor desk files and similar records, to the extent those records are or may be used to affect the terms and conditions of an employee's employment. In other words, the "personnel record" is defined by what it contains, not where or by whom it is kept. Starting from this already-broad definition of a personnel record, the amended statute now provides:
"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 qualifications for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action."
The overly broad and vague language of the amendment thus requires employers to notify employees, within 10 days, whenever "any information" is placed within the employee's "personnel record" that "may be used" to "negatively affect" an employee's employment. Read literally, the new notification requirement would be triggered, for example, when a supervisor sends an e-mail message to Human Resources concerning potential discipline or a manager places a note concerning the employee's future promotion potential within a desk file. Whether the Attorney General's office will interpret the statute so broadly remains to be seen. However, in the interim, we recommend that employers take the following actions:
- Require employees to sign and acknowledge receipt of evaluations, performance plans, warnings and similar documents that contain information that objectively could be considered to be negative.
- Evaluate carefully whether less formal documents are "personnel records" and, if so, whether the record contains negative information that requires notification.
- Provide any required notification in writing.
- Train supervisors on how to properly document employment issues and the risk of maintaining unofficial personnel files.
- Update all relevant polices and advise appropriate personnel of their notification obligations.
Access to Personnel Records
The amendment also limits an employee's right to review his or her personnel record to no more than two occasions during a calendar year. However, review requests caused by the notification of negative information are not subject to the annual limit.
Enforcement and Penalties
There is no private right of action under the Personnel Records Statute, although employees may seek judicial action to have expunged from their personnel record any information the employer knew or should have known was false. In addition, the Attorney General's office is empowered to levy fines between $500 and $2,500 per violation.