What you need to know
Massachusetts recently amended its personnel records statute to require employers to affirmatively notify employees when negative information is added to the employee’s personnel record. This is a marked change from the existing statute.
What you need to do
At this time there is no guidance from the legislature, courts or Attorney General as to exactly what types of negative information trigger the notification obligation. In the short term, employers should be sure to notify employees of negative information that is placed in the employee’s formal personnel file, and consult with counsel with respect to closer questions and the development of a general policy going forward.
Massachusetts’ personnel records statute
In early August, Governor Patrick signed into law an economic development bill that became effective as of August 1, 2010. Hidden in that bill is an amendment to the Massachusetts personnel records statute. Prior to the amendment, employers were only required to allow employees to review their personnel files upon request. The amended statute creates an affirmative obligation on the part of employers to notify employees within 10 days whenever any information is added to the “personnel record” that is used or may be used to “negatively affect the employee’s qualification for employment, promotion, transfer, or additional compensation or the possibility that the employee will be subject to disciplinary action.”
The statute already defines “personnel record” broadly, to include not just the formal personnel file, but also information kept in other locations regarding the employee’s performance, such as a supervisor’s notes. The interpretation of the terms “may be used” and “negatively affect” will be of critical importance in identifying the employer’s obligations under this statute. It is clear that information that has been used to negatively affect an individual’s employment must be shared with that person. The gray area occurs with respect to information that “may be used” for that purpose and that is not maintained in the employee’s formal personnel file. For example, under an expansive reading of the law, an employer would have to give notice for every negative email sent between supervisors regarding the employee regardless of whether it is acted upon or placed in a formal personnel file.
It will take time before the courts and the Attorney General provide guidance as to precisely how broad this new obligation is. One possible approach, at least in the short term, is to limit notification to those instances where a personnel action is sufficiently concrete to be included in an employee’s formal personnel file maintained by human resources. Until greater clarity emerges, employers are strongly advised to consult with counsel with respect to the precise scope of what the new law may require.
Although this bill creates new obligations for employers, it also limits the number of times employees may review their personnel files to two times per year. However, any review arising out of the placement of negative information in the file does not count toward this limit.
Employees do not have a private right of action under the personnel records statute, but the Attorney General may seek fines of between $500 and $2,500 for each violation.