Massachusetts Personnel Record Statute Amended to Mandate Notice to Employees of Negative Information.

Effective August 1, 2010, the Massachusetts Personnel Records Statute, G.L. c. 149, § 52C, was amended to require employers to notify employees within ten days of placing in an employee’s personnel record any information that 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. The amendment also provides that an employer is not required to allow an employee to review his or her personnel record on more than two occasions in a calendar year, except that any review prompted by the placing of negative information in the personnel record is not counted.

The Personnel Records Statute requires Massachusetts employers of twenty or more employees to retain a complete personnel file for each employee from the date of employment until three years after termination. The statute defines "personnel record" as any record kept by an employer concerning an employee that "is used or has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation or disciplinary action." The "personnel file" must include written information prepared by the employer providing the employee’s name, address, date of birth, job title, job description, rate of pay, and starting date. It must also include copies of the job application, resume or other forms of employment inquiry submitted by the employee, and all employee performance evaluations, written warnings of substandard performance, lists of probationary periods, waivers signed by the employee, copies of termination notices, and any other documents relating to disciplinary action regarding the employee.

The statute further provides that, within five days of a written request of an employee, an employer must permit that employee to review his or his personnel record or provide the employee with a copy of it. The statute further provides a mechanism for an employee to protest entries in the personnel record, providing that, if an employee disagrees with any information in his or her record and the employer and employee cannot reach a mutual agreement as to removing or correcting the information, the employee may submit a written statement explaining the employee’s position and such statement becomes part of that employee’s personnel record.

There is no private right of action for a violation of the Personnel Records Statute. The statute is enforced by the Attorney General’s Office, which can fine an employer between $500 and $2,500 for a violation.

The amendment, while requiring employers to provide notice to an employee whenever negative information is placed in the employee’s personal record, does not require that such notice be in writing, nor does the amendment require that the employer notify the employee that he or she can dispute the information by submitting a written statement explaining the employee’s position.

While previously, employers simply had to maintain a personnel record for each employee and make it available upon written request, the amended statute now requires employers to provide notice to an employee whenever it places negative information concerning that employee in an employee’s personnel file. Applying the amended statute may prove difficult for employers. First, the statute’s definition of "personnel record" to include all records kept by an employer that may be used or may affect an employee’s qualifications is extremely broad. Second, employers must now determine, whenever it places information in an employee’s personnel record, whether such information "may be used" to "negatively affect the employee’s qualification for employment, promotion, transfer, additional compensation". Employers should review their written policies and practices concerning personnel records and immediately provide notice to employees whenever a negative statement concerning an employee is placed in his or her personnel file. It is recommended that such notice be given in writing, to be signed by the employee, and that such notice include an explanation of the employee’s right to submit a written statement explaining the employee’s position.

Posted August 30, 2010