Published on: February 14, 2013
Over the past several years, the Massachusetts Legislature has been busy in instituting major changes in the area of employment law. Two significant changes regarding personnel records and employment applications that every condominium association and management company employer should be aware of include the following:
I. Employers are Required to Notify Employees of Negative Information Placed in Personnel Records and Provide Access to Personnel Records Upon Written Request.
Massachusetts law defines a personnel record as “a record kept by an employer that identifies an employee, to the extent that the record 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.” M.G.L. c. 149, §52C (the “Statute”). A personnel record shall not include information of a personal nature about a person other than the employee if disclosure would be an unwarranted invasion of such other person’s privacy. Additionally, in response to privacy concerns raised by employees about their medical information, certain federal statutes (e.g. the Americans with Disabilities Act, and the FMLA) require employers to keep confidential any information about an employee’s medical condition or history, and require employers to maintain such information in a separate file.
The Statute provides guidance on what information or documents, to the extent they are prepared by an employer of twenty or more employees, be included in an employee’s personnel record:
- Name, address, date of birth of the employee;
- Job title and description;
- Rate of pay and other compensation paid to the employee;
- Starting date of employment;
- Job application, resumes, or other forms of employment inquiry submitted to the employer by the employee;
- Any and all performance evaluations, including but not limited to, employee evaluation documents;
- Written warnings of substandard performance;
- Any and all documents concerning probationary periods;
- Any and all waivers signed by the employee;
- Copies of dated termination notices; and
- Any other documents relating to disciplinary action.
Personnel records can also include notes, correspondence, including emails, created by trustees, individual managers and supervisors of employees if such documents are used or may be used to determine qualifications for employment, promotion, transfer, additional compensation, termination, or disciplinary action. Thus, trustees, managers and supervisors should always be careful in creating documents of this type. Even if these types of documents are not physically placed in the employee’s file, they can be considered part of the personnel file and subject to production.
A change to the Statue now requires employers to “notify an employee within ten 10 days of the Employer placing in the employee’s personnel record any information to the extent that the information 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.”
The Statute is ambiguous as to what type of notice must be given to the employee. It does not indicate whether employers must provide written notification that such document has been placed in a personnel record or whether the notification must include a copy of the document. It, however, would be prudent that employers provide written and dated notification, as it will serve as a record of the employer’s compliance with the new requirement. It is also not clear whether an internal company e-mail or a casually written note not physically stored in an employee’s personnel record will constitute “information” under the new law.
Massachusetts broadly defines a “personnel record” to include any documents that are or may be used to affect an employee’s employment, promotion, transfer, compensation or disciplinary action. As a result, even if a document that could negatively impact an employees’ employment status is not formerly “placed” in a personnel record, it is likely part of that employee’s personnel record, triggering the new notification requirement. Without further guidance from the Attorney General’s office or the courts, employers must exercise some judgment as to whether or not a given document has been or may be used to negatively affect the employee and whether the given document was “placed” in the personnel record.
Employers are still required to permit employees to review their personnel records within five business days of a written request for review. The review shall take place at the place of employment and during normal business hours, or a employer may simply provide the employee with a copy of their personnel record. As a practical matter, if an employee requests to review his or her record, it is recommended that a representative of the employer be present during the review to make certain that no contents of the file are removed or altered. If an employee requests a copy of his or her file, the employer must be certain to provide the employee with a copy of the employee’s file within five business days in order to be within compliance of the Statute.
The Statute further provides that if an employee disagrees with any information contained in his or her personnel record, the information may be removed or corrected by mutual agreement of the employee and the employer. If an agreement cannot be reached, the Statute affords the employee the opportunity to submit a written statement explaining the employee’s position, which then becomes part of the personnel record. Additionally, 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 or other personnel procedure, or through judicial process.
Employees are now limited to only two (2) such reviews of their personnel records in any given calendar year. Significantly, though, a review triggered by an employer’s notice that is has placed negative information in the personnel records does not count as one of the two annual reviews.
How Long Should Employers Maintain Personnel Records?
The Statute does not appear to require employers with twenty or more employees to create personnel files if they do not exist, or are not kept in the normal course of business. However, if an employer with twenty or more employees does create such documents, those employers must retain employees’ personnel records without deletions or expungement of information (except by mutual agreement of the employer and the employee) for three years after termination of employment. If there is a cause of action brought by an employee against the employer, the employer is then required to retain the personnel record until final disposition of the legal action. Employers should be aware that the Statute provides for a criminal penalty of a fine of not less than $500 nor more than $2,500 to whoever violates the provisions of the Statute, and that the Statue is enforced by the Attorney General’s office.
Although the Statute applies to employers of twenty or more employees, it is prudent that all employers of every size maintain and properly retain personnel files. Creating and maintaining accurate, legible and appropriate documentation of employees will place any employer, including condominium associations and management companies, in a better position to defend against claims brought by an employee, in any administrative or judicial proceeding. Thus, if not already in place, condominium associations and management companies of all sizes should consider developing and preparing policies to handle the hiring, discipline, file management and document retention.
Finally, if an employer obtains a request from an employee for his or her employment file, it is likely that a workplace related claim is on the horizon and it is recommended that the employer seek legal advice from its counsel to review the personnel file for relevance and for certain privileges, including attorney client privilege and trade secrets, before producing the personnel file. Issues regarding properly documenting the employment relationship will be covered in another article to be posted in the next few months, so stayed tuned.
II. Reminder of What Not to Include in Employment Applications
Changes to the Criminal Offender Records Information Statute (“CORI”) limits what information an employer may seek on a job application in an effort to improve employment opportunities and prevent employers from screening out applicants with criminal records.
Effective November 4, 2010, employers may no longer request criminal offender record information on the initial written employment application except, however, an employer may inquire about any criminal convictions on an applicant’s application if: (i) the applicant is applying for a position for which any federal or state law or regulation creates mandatory or presumptive disqualification based on a conviction of criminal offenses; or (ii) the employer or an affiliate of such employer is subject to an obligation imposed by any federal or state law or regulation not to employ persons who have been convicted of criminal offenses.
Previously employers were allowed to inquire as to whether the applicant had been convicted of a felony or other certain types of misdemeanors. Employers who currently have questions on their written employment applications concerning criminal offender record information should immediately remove such questions from the applications and make any other necessary revisions for compliance with this change. While the revised CORI statute precludes an employer from requesting criminal record information on its application, an employer may still question applicants during an interview about whether they have been convicted of a felony or if they have been convicted of a misdemeanor within the past five years (other than a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray or disturbance of the peace). Thus, while employers may no longer ask criminal record information on applications, employers should consider protecting themselves under the new law by implementing proper criminal record questions to be asked during the interview, and consider adding language to an application that provides something to the effect that employment is contingent on the outcome of a background check.
Given these significant changes, condominium association and management company employers should immediately take steps to examine current employment applications, interview procedures and personnel file retention policies in order to make certain that such policies and procedures are compliant with the Statute. Additionally, while this article merely points to two major changes in the Massachusetts Employment Law, other dramatic changes for employers have gone into effect, and employers should seek the advice of counsel to ensure that existing pre-employment and employment practices and procedures are legally compliant and effective.