Published on: September 1, 2010
On August 5, 2010, Governor Deval Patrick signed into law “An Act Relative to Economic Development Reorganization” (M.G.L. c.240, §1, et. seq.) with a stated purpose of providing a business friendly environment, stimulating job growth, and coordinating economic development activities funded by the Commonwealth. Buried within the act is a significant amendment to the Massachusetts Personnel Records Statue (M.G.L. c.149, §52C). The new law (Chapter 240 of the Acts of 2010, Section 148) implements a change in employers’ legal obligations regarding personnel records. The amendment requires employers to “notify an employee within 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 law does not include any provision for requiring notification to employees of negative information already existing in a personnel record prior to the effective date of the Act which was made retroactive to August 1, 2010.
The amendment to the statute is ambiguous. The statute does not specify 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.
As was already required under the old law, employers still must permit employees to review their personnel records within five business days of a written request for review. However, the new law now limits employees to two such reviews of their personnel records in any given calendar year. Significantly, though, a review triggered by an employer’s notice that it has placed negative information in the personnel records does not count as one of the two annual reviews.
While the amendment has potentially far-reaching consequences for managers and human resource personnel, it must not be overlooked that the amendment applies only to documents that are required to be placed in the “personnel record” in the first instance.