Massachusetts Personnel Records Law Now Requires Employees Be Given Immediate Notice of “Negative Information”

Effective August 1, 2010, the so-called Massachusetts Personnel Record Law (the “Law”) was amended by a provision in an omnibus economic development bill to now require all employers to notify an employee within 10 days of “placing any information in the employee’s personnel record” which may be used to negatively affect the employee’s status. Because of the broad definition of personnel records under the Law, this new amendment imposes new and substantial obligations on all employers.

Under the Law, employees are entitled to to review their personnel records during normal business hours upon written request, and to obtain a copy of the record.¹ Personnel record is defined as “a record kept by an employer that identifies an employee, to the extent that the record is used, has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation, or disciplinary action.” On its face, the definition is not limited to documents in a formal personnel file, such as formal performance reviews. In addition, employer is defined to include “agents” of the employer, a concept which in employment law often includes supervisors. Thus, the term personnel record could include documents kept separately by a supervisor that may affect an employee’s status, including personal notes and e-mails. Under the new amendment, the employer may be required to notify the employee if a supervisor decides to retain some of these less formal documents for future review purposes, for example.

The Law also provides that if an employee disagrees with any information contained in his or her record, the information may be removed or corrected by mutual agreement of the employee and the employer. In the absence of such agreement, the employee may submit a written statement explaining his or her position, which then becomes part of the personnel record. As long as the original information is retained as part of the file, the employee’s statement must be included whenever the record is transmitted to a third party. The statute also provides that if an employer places in a personnel record information that it knew or should have known was false, the employee may seek to have the information expunged through collective bargaining, other personnel procedure, or judicial process.

The Law is enforced by the Attorney General. Fines for violation range from $500 to $2,500.

The Law as amended heightens the need for employers to train supervisors in proper documentation and communication with Human Resources. Supervisors are well-advised to make contemporaneous notes of positive and negative matters concerning employees which they can cite in justifying recommended personnel actions. Now, HR will need to know about “negative information” when it is first recorded by the supervisor so that the employee can be advised and given an opportunity to challenge the information or place a rebuttal statement in the “record.” Failure to comply with the amendment’s notification requirements could cause employers serious problems in litigation challenging subsequent adverse action against the employee such as:

• The employee may argue that the employer is precluded from relying on the underlying problem to justify the adverse action; or, at the least
• The employee may cite the failure to notify as evidence that the employer did not believe that the information in the record was truly negative, and may thus undermine the employer’s ability to defend its personnel actions.

On the other hand, although the amendment increases the immediate burden on supervisors and HR, it may ultimately prove to help employers defend subsequent adverse action taken against an employee who was notified of the negative information and failed to effectively rebut it.

For more information on this alert or any other labor and employment issues, please contact any of the lawyers listed below:

Boston
John Adkins, john.adkins@bingham.com, 617.951.8551
Jenny Cooper, jenny.cooper@bingham.com, 617.951.8473
Louis Rodriques, Co-chair, Labor and Employment Group, louis.rodriques@bingham.com, 617.951.8340

Los Angeles/Orange County
Jacqueline Cookerly Aguilera, jackie.aguilera@bingham.com, 213.229.8439
Debra Fischer, debra.fischer@bingham.com, 213.680.6418

San Francisco
James Severson, james.severson@bingham.com, 415.393.2242

New York
Douglas Schwarz, douglas.schwarz@bingham.com, 212.705.7437

Tokyo
Mie Fujimoto, mie.fujimoto@bingham.com, 81.3.6721.3138

¹ The amendment limits an employee’s right to review his or her personnel record to twice each calendar year, but then provides that a review requested in response to a notification of negative information being placed in “the” personnel record is not to be counted as one of the two annual reviews.