Massachusetts Gov. Deval Patrick recently signed an economic development bill that included changes to the Massachusetts Personnel Records Statute (M.G.L. c. 149 §52C). Effective immediately, the law now requires that employers notify an employee if any negative information is placed in his or her personnel file.
The Notification Requirement
The amended law requires an employer to notify an employee within 10 days of the employer “placing” any information in the employee’s personnel record “to the extent that the information is being used, has been 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 amended statute does not define its key terms, and employers would be well served by reading terms like “may be used to negatively affect” in the broadest sense. Employers should also assume that the term “information” includes information stored in any form, including electronically. The term “placing” could mean that the amended statute’s requirements are intended to apply only when the employer adds information to an employee’s official record. That restrictive reading, however, will likely be challenged. “Personnel record” as defined in the law prior to this amendment includes pertinent information without a qualification stating that the information must be “placed” in a “record” by the employer. Whether the amended law will have such a broad reach so as to require notice when any negative information is generated about an employee, such as a supervisor’s email, remains to be seen.
Frequency of Requests
The amended statute adds a twice-per-year limitation for the number of times that an employee may request his or her personnel record. Requests made based on an employer’s notification that negative information has been in the record, however, do not count toward the two-request cap.
The legislature has not given employees the right to bring an action based on an employer’s failure to comply with the law. Enforcement is left to the attorney general, who may impose fines of $500 to $2,500 against employers for each violation.