On August 5, 2010, Massachusetts Governor Deval L. Patrick signed into law an economic development bill that included an amendment to the Massachusetts personnel records statute, Massachusetts General Laws (M.G.L.) Chapter 149, §52C. This amendment creates an affirmative obligation on the part of employers to notify employees whenever certain negative documents are placed into an employee’s “personnel record.”
The amended statute provides that:
An employer shall 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.
This is a significant departure from existing law, and will require employers to change the way they document personnel issues. Indeed, it is clear that, in the future, each time a document meeting this expansive provision is placed in an employee’s personnel file, the employer must notify the employee. In addition, and as further discussed below, it is possible that an employer is now required to notify an employee every time it creates a negative document (e.g., an e-mail) about the employee. As the notification requirement went into effect on August 1, 2010, employers should immediately take note of this important change and determine how they will comply with the new law.
There is no private right of action for violation of Chapter 149, §52C, which means that employees cannot sue for violation of this provision. However, the Massachusetts Attorney General may impose fines of $500 to $2,500 against employers for each violation.
Review of personnel records
The amendment to Chapter 149, §52C does not alter the requirement that an employer must allow an employee to review his or her personnel record within five business days of receiving a written request to do so. But the amendment does provide that employers will not be required to allow an employee to review the employee’s personnel record on more than two separate occasions in a calendar year. A notification and review caused by the placing of negative information in the personnel record (as discussed above) “shall not be deemed to be 1 of the 2 annually permitted reviews.” This means that employees have the right to review their personnel records every time their employer notifies them that negative documents have been placed in the records.
In addition to imposing new burdens on employers, the notification requirement in Chapter 149, §52C will require employers to rethink how they manage many personnel issues. For example, the statute provides that the obligation to notify an employee is triggered by “the employer placing in the employee’s personnel record…” (emphasis added) a negative document, as defined above. This wording implies that a “personnel record” is a location or collection of documents (such as a personnel file). However, in paragraph 4 of Chapter 149, §52C, “personnel record” is defined to include individual documents containing particular information. One reading of the amended statute is that any time a document is created that is, has been, or may be used to negatively affect the terms and conditions of the employee’s employment (even if that document is an e-mail between a supervisor and a human resources director, or a manager’s scribbled note), the employee must be notified. Can this really be the intention of the statute? Or does the statute now distinguish between documents “placed” in a personnel file and other notes or e-mails created but not placed in the personnel file? Further, what form must the notification take? Must the employer give the employee a copy of the document placed in the personnel record, or just let the employee know that an addition has been made to the personnel record?
At this early stage, no guidance has been provided by the legislature, the courts, or the Attorney General. Because the breadth of the likely interpretation of this statute is unknown, employers have a potential minefield to navigate when documenting personnel issues and striking the appropriate balance between compliance with this new requirement, maintaining a well-functioning human resources organization, and managing the legal risks of employment-related claims.