By Patrick M. Watts
Massachusetts recently passed an amendment to their Personnel Records Statute (Mass. Gen. Laws c. 149, § 52C). Employers of 20 or more employees must notify employees when negative information is placed into personnel files.
The Office of the Attorney General will enforce this amendment and may set fines anywhere from $500 to $2,500 per violation. To date, no guidelines from the Attorney General have been issued.
Under Massachusetts law, an employee’s personnel record is defined by what it contains – not by where the records are kept. Formal personnel files maintained by Human Resources are contained within the definition. More problematic are more informal supervisor files and reviews which are also included in an employee’s “personnel record.”
The language within the amendment is broad and vague, leaving many employers confused over how to implement this change. The amendment requires employers notify employees within 10 days when “any information” is placed within an employee’s “personnel record” that “may be used” to “negatively affect” an employee’s qualifications. This includes anything that could negatively affect employment, including: promotion, transfer, compensation, or the possibility of disciplinary action. Employers must comply with an employee’s request for review within five days of the request.
Employees in Massachusetts have a right to review personnel records up to two times per year. However, if the notice is triggered, the employee’s review does not count in the two reviews permitted annually. Additionally, employees may seek judicial action to expunge any information from personnel records the employer knew or should have know was false.
Employers affected by this statute should examine their policies and practices to comply with the new amendment.
