In August, Governor Patrick signed into law “An Act Relative to Economic Development Reorganization.” The Act included an amendment to the Massachusetts Personnel Records Statute, M.G.L., ch. 149 § 52C, that requires employers to notify an employee whenever any negative information is placed in an employee’s personnel file that “is, has been used or may be used” to negatively affect an employee’s qualification for employment, promotion, transfer, additional compensation or disciplinary action. The notification to the employee must be made within 10 days of the placement of information in the employee’s file.
The amendment to M.G.L., ch. 149 § 52C does not change the definition of a personnel record. That definition is still quite broad, as it includes any document that may affect or be used relative to an employee’s qualification for employment, promotion, transfer, additional compensation or disciplinary action. The broad definition thus captures more than the personnel folders that store employment agreements and offer letters, performance evaluations, written discipline, payroll information and W-4 forms.
Many employers routinely place performance reviews, written warnings, counseling statements and performance improvement plans in employee personnel files. Moreover, many employers routinely have employees sign these documents before they are included in the employee’s file. For those employers, and for those documents, the new law’s notice requirement will not result in any change to present practices. Those employers who do not have employees sign performance reviews, performance improvement plans, counseling statements and warnings should now do so, as that step alone will ensure compliance with the new law, at least with respect to those categories of documents. The signature block should include an acknowledgement that the document will be placed in the employee’s personnel file.
The application of the new law to informal documents is less clear. In many workplaces, supervisors and managers routinely create handwritten notes or working files about employee performance issues. Supervisors or managers may create emails or other electronic records or communications that relate to employee performance issues. Whether these documents constitute negative information that has been or may be used to negatively impact an employee, such that the notification requirement of the new law would be invoked, is an open question.
We expect compliance strategies to be specific to each employer, and each employer’s unique business operation. That said, managers and supervisors must now assume that the creation of emails, notes and other documents that pertain to an employee’s performance might trigger the new law’s notification requirements. The new law was effective immediately, so at a minimum, we suggest that employers immediately take the following steps:
- Ensure that all formal performance reviews, disciplinary warnings, performance improvement plans, and counseling statements include an employee’s signature block that evidences the employee’s receipt of the document and acknowledgement that the document is part of the employee’s personnel record, as defined by M.G.L. ch. 149, § 52C, and ensure that these forms are properly completed
- Provide uniform guidance and training to supervisors and managers with respect to the documentation of employee performance issues, including but not limited to guidance on the retention and use of “supervisor’s files,” email communications by and between supervisors and managers and the use of informal handwritten notes concerning employee performance issues
- Update employer policies and practices to comply with the new law, including electronic communication policies