On June 21, 2013, Governor Dannel Malloy signed into law a measure that makes major changes to Connecticut’s Personnel Files Act. The new law changes employer response times to personnel file requests, imposes new rules requiring employers to provide employees with copies of certain disciplinary documents, and gives employees the right to respond to employer documentation with their own statements. The new law goes into effect on October 1, 2013.
Major Changes Included in the Law:
- Employers will now be required to give employees copies of any documentation of disciplinary action within one business day of taking the disciplinary action.
- Employers will also be required to “immediately” provide employees with copies of any “documented notice” of termination of employment.
- Employers will now have to include a “clear and conspicuous” notice on all disciplinary action documents, termination notices, and performance evaluation forms stating that employees may submit written statements explaining their positions should they disagree with any of the information contained in the employer documents. The employer must keep such employee statements in the appropriate employee’s personnel file and include it whenever the file is transmitted or disclosed to a third party.
- Employers will now have seven business days to allow current employees to inspect, and if they request it, receive copies of their personnel files. Under the existing law, employees have only had the right to inspect their files, and employers had an unspecified “reasonable time” to permit inspection. Inspection still must be permitted during regular business hours and at a location at, or reasonably near, the employee's place of employment.
- Employers will now have 10 business days following receipt of a written request to allow former employees to inspect or receive copies of their personnel files, assuming the request is made within one year of the termination of employment. If the employer and the former employee cannot agree on a location for “inspection” of the personnel file, the employer may fulfill its obligation by mailing a copy of the file within the 10-day timeframe.
- The Connecticut Department of Labor is charged with setting an appropriate fine of up to $500 for the first violation related to an individual employee, and up to $1,000 for subsequent violations involving the same employee. The fine must take into account relevant factors, including the appropriate amount necessary to achieve immediate and continued compliance, the character and degree of the violation, and any prior history of violations.
What Does This Mean for Employers?
In preparation for this change that goes into effect on October 1, 2013, all employers with Connecticut-based employees should begin to update their policies and procedures to reflect these new requirements. Please note that Connecticut has a very broad definition of “employer” under its personnel file law, and there is no minimum number of employees for this law to apply. New procedures should include a method for ensuring appropriate response time to personnel file requests and a system for providing notice of termination and documented disciplinary action to affected employees. In addition, disciplinary action documents, termination notices, and performance evaluation forms for Connecticut employees should be printed with a notice stating that employees may submit written statements explaining their positions should they disagree with the employer documentation. Finally, employers should update their policies regarding responses to discovery requests, third-party subpoenas, and requests for personnel files to ensure that copies of files include any applicable employee statements disagreeing with employer documentation.
The new law does not define the limits of what constitutes disciplinary action and whether or when employers must proactively create documentation of various types of disciplinary action, such as verbal warnings. The law also does not address whether internal memos and manager-to-manager notes about disciplinary action must be provided to employees. For now, though, and until the law is clarified to address these questions, where there is clear documentation of disciplinary action (such as a performance improvement plan or a written warning), employers should be sure to provide the required copies to affected employees within the prescribed one-day time period.
These significant changes to the Connecticut personnel file law are similar to changes that have gone into effect in other states in recent years. Proactively updating your policies and procedures should alleviate any significant disruption caused by compliance with the new requirements.