In a disappointing development for Massachusetts employers, efforts by the Commonwealth Attorney General’s office to come up with a new bill negotiated with employer participation clarifying a vague and vexing provision of state law mandating that employees be notified promptly of adverse entries in their personnel records appear to have stalled as the current legislative session draws to a close.
On August 1, 2010, an amendment to the Massachusetts Personnel Records Statute, Mass. Gen. Laws c. 149, § 52C, became effective. The amendment states, “…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 qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action….” Because, on its face, 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, Massachusetts employers immediately expressed concern that the amendment was too vague and broad to be workable. Indeed, 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 potentially negative information kept anywhere, including a supervisor’s notes kept in his desk drawer. (For more information, see Massachusetts Personnel Records Law Amended to Add Notification to Employees.)
In early 2011, at the urging of Massachusetts employers and employer representatives, including Jackson Lewis, the Massachusetts Attorney General, which is charged with enforcing the law, sought assistance from management and employee representatives to draft clarifying legislation. The Attorney General convened separate employer and labor/employee committees to propose changes to the amendment that the Attorney General could incorporate in clarifying legislation. Unfortunately, the “compromise” legislation proposed by the labor/employee committee was a major disappointment to members of the employer committee, primarily because: (1) it did not solve the problems of vagueness and overbreadth created by the original amendment and (2) the labor/employee committee also proposed additional changes to the personnel records law that went well beyond merely attempting to clarify employers’ obligations under the amendment. Indeed, if adopted, they would make the statute even more burdensome.
For now, however, it appears the Attorney General is not pursuing further efforts vigorously to reach a compromise. Thus, the current legislative session could end without the Attorney General filing a negotiated bill to clarify the law.
(Separate from the Attorney General’s efforts, there are several bills pending in the legislature to “fix” the amendment. However, none of them are expected to be enacted during this legislative session.)
As of this writing, absent a clarifying amendment, it is not clear how the Attorney General intends to interpret and enforce employer obligations under the amendment. Shortly after the amendment became effective, the Attorney General indicated unofficially that she would not issue an interpretive guidance or other interpretive aid about the amendment.
Given the amendment’s breadth, the difficulty associated with interpreting and complying with it, and the recognition by the Attorney General’s office that the law should be amended, an expectation has arisen that the Attorney General’s office may not enforce the new mandate aggressively by seeking fines against employers for non-compliance; rather, it may try to “work things out” between the complaining employee and his or her employer. Additionally, for the same reasons, employers realistically may hope the Attorney General will concentrate on employee complaints about documents that actually have been used or are likely to be used negatively and will not concern herself with speculative complaints over lack of notification about documents that “may” be used negatively).