Nestled in the economic stimulation bill signed by Governor Patrick this summer was a sweeping change to the state’s “personnel record” law that now requires employers to notify employees about documents that could negatively impact the employee’s position with the employer. This little-known amendment reportedly came about after a police officer was denied a promotion because of a negative report in his personnel file about which he knew nothing.
The amendment to the personnel records law, M.G.L. c. 149, § 52C, went into effect on August 1, 2010. It specifically requires an employer “to notify an employee within 10 days of the employer placing in the employee’s personnel record any information [that] 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”
What does this mean?
It’s unclear. A broad reading of the statute could require an employer to notify an employee of commonplace managerial frustrations, such as isolated tardiness, if the manager jotted a note about the incident. Read more narrowly, (and likely what the Legislature intended), the statue only would require an employer to notify an employee of any document that the employer plans to rely upon when making a decision about promotion, demotion, compensation, termination and the like. The good news for employers is that a spokesman for Attorney General Martha Coakley told the Boston Business Journal that the AG expects “to work with employer rights groups and businesses in the near future to ensure appropriate implementation.”
Other than “negative” information, what must an employer include in the personnel file?
- Vitals — name, address, date of birth, job title and description;
- Rate of pay and any other compensation paid to the employee;
- date of employment;
- Job application;
- Performance evaluations;
- Written warnings of substandard performance;
- Lists of probationary periods;
- Waivers signed by the employee;
- Copies of dated termination notices;
- Any other documents relating to disciplinary action regarding the employee.
What else do I need to know?
- An employer receiving a written request from an employee to review his or her personnel file must provide the employee with an “opportunity to review” the file “within 5 business days of the request”;
- If requested in writing, the employer must provide a copy of the personnel file to the employee within 5 days of such a request;
- An employer need not permit an employee to review the employee’s personnel record on more than 2 separate occasions in a calendar year except that an employee’s review of any negative information does not count toward this annual limit;
- Employees may submit a document disputing any information contained in the personnel file. Employers must include any written dispute in the employee’s personnel record. Employees do not have a private right of action; this law is enforced by the Massachusetts Attorney General. The fine imposed shall not be less than $500.00 or more than $2, 500.00 per violation.
- Ensure that any employee who has had negative information added to his or her personnel record since July 31, 2010 has been notified;
- While the law does not mandate that employers put notification in writing, employers should do so to create a record that they have complied with the law’s obligations;
- Train supervisors on what constitutes a “personnel record” under the statute and how to draft personnel records in a way that minimizes legal exposure;
- Educate supervisors that even informal “manager’s files” – those notes and reflections that never make it to Human Resources – should no longer be kept.
Read more from Allyson Kurker here.