In August, 2010 Governor Patrick signed into law “An Act Relative to Economic Development Reorganization.” The Act included an amendment to the Massachusetts Personnel Records Statute, M.G.L., c. 149 § 52C. Among other things, the amendment requires employers to notify an employee whenever any negative information is placed in an employee’s personnel file .
What is a Personnel Record
M.G.L. c.149 §52C 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." A personnel record shall not include information of a personal nature which may constitute an invasion of privacy of the individual.
Employers with twenty or more employees must keep at least the following information or documents to the extent prepared by an employer, in an employee’s personnel record:
- Name, address, date of birth, job title and description;
- Salary or hourly wage and any other paid compensation;
- Starting date of employment;
- Job application, resumes or other employee responses to an employment advertisement;
- All employee performance evaluation documents, including evaluations, written warnings of substandard performance, documents relating to disciplinary action, list of probationary periods, or waivers signed by the employee; and
- Copies of dated termination notices.
Notification Period
The Personnel Records Statute was amended to require employers to give notice to an employee within ten (10) days of the placement of information in the employee’s file that “is, has been used or may be used to negatively affect an employee’s qualification for employment, promotion, transfer, additional compensation or disciplinary action.” The amendment does not require that the notice to the employee be in writing. However, an employer might want to consider doing so in order to maintain documentation that it has complied with the notification requirement.
Employee Access to Personnel File
The amendment further provides that an employer may limit the number of times an employee may review his personnel record to “two separate occasions” per calendar year. However, if the employee’s request to review the personnel record is triggered by the notification by the employer that “negative” information has been placed in the personnel record by the employer, it cannot be counted against the employee’s right to review the personnel record twice a year.
What Do These Changes Mean for Your Company
For the most part, employers have in place established procedures with respect to such things as performance reviews, warnings regarding an employee’s behavior, performance improvement plans, and the like. Employers usually require employees to acknowledge the receipt of these documents by signature prior to their inclusion in the personnel record. If you do not currently require employees to acknowledge receipt of such documents you should now do so. You may also want to include a statement that acknowledges that the document will be placed in the personnel record.
At a minimum, employers should consider the following:
- Review current policies and procedures with respect to what documents are currently included in an employee’s personnel record;
- Require employees to acknowledge receipt of any documentation which may contain any negative information regarding the employee’s employment with the employer;
- Require employees to acknowledge receipt of performance reviews, evaluations, written warnings or any other documentation which may be considered “negative” in nature;
- Revise current polices and procedures to include the ten day period in which an employee may review any negative information in the personnel record.
If you have any questions regarding the recent changes to the Personnel Record Statute or would like assistance developing a new personal record policy we are ready to assist you. In addition, our attorneys stand ready to review your current employment manual and can suggest ways to improve your policies and procedures. Please feel free to contact any one of our litigation attorneys at Seegel Lipshutz & Wilchins LLP.
