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Massachusetts Personnel Records Law Amended to Include Employer Notification Requirement

Nancy Puleo August 24, 2010

On August 5, 2010, Governor Deval Patrick signed into law an economic development bill that included an amendment to the Massachusetts personnel records statute, Massachusetts General Laws Chapter 149, § 52C.  The amendment creates an affirmative obligation on employers to notify employees within ten days of adding new information to a “personnel record” that could negatively affect the employee’s employment or lead to disciplinary action.

The statute broadly includes the following documents within the definition of “personnel record”: all employee performance evaluations, including but not limited to, employee evaluation documents, written warnings of substandard performance, and any other documents relating to disciplinary action regarding the employee.  A personnel record encompasses not only an employee’s formal personnel file, but also other employment-related records about the employee, no matter where they are stored.  For example, a note on a supervisor’s desk or stored in an email inbox is a personnel record.

The amendment raises many uncertainties and there is no guidance from the legislature, the courts, or the Attorney General who enforces the law.  For example, the amendment is silent on the form and content of the required notification.  It also allows for an expansive reading, since the bill mandates disclosure of any information that may be used to negatively impact an employee, including the mere possibility of disciplinary action.  Accordingly, even internal emails in which an employee is discussed could implicate the notice requirement because the emails may be used to impose disciplinary action or other adverse employment actions.

Notably, this amendment 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. However, the amendment provides that employers will not be required to allow an employee to review his or her personnel record on more than two separate occasions in a calendar year.  A review of a personnel file resulting from the employer’s placement of new negative information within it “shall not be deemed to be 1 of the 2 annually permitted reviews”.  Consequently, employees have the right to review their personnel records each time their employer notifies them that negative documents have been added.

There remains no private right of action for violation of the personnel records statute, which means that employees cannot sue for violation of this new provision.  The Office of the Attorney General may impose fines of $500 to $2500 against employers for each violation.

As the amendment went into effect on August 1, 2010, employers should immediately take note of this important change and review their internal policies and procedures for documenting employee issues.

If you have any questions or need additional information regarding this, please contact Nancy J. Puleo in our Employment Group.

This Alert is provided for information purposes only, and does not constitute legal advice.  According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2010 Posternak Blankstein & Lund LLP.  All rights reserved.

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