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Employment Law

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On August 5, 2010, Governor Patrick signed into law an economic development bill, An Act Relative To Economic Development Reorganization, which includes an amendment to the Massachusetts Personnel Record Law that imposes a new notice requirement on employers. The changes, summarized below, are retroactive to August 1, 2010.

Notification Required

Employers are now required to give notice to an employee within 10 days of placing certain negative information into the employee’s personnel record. Specifically, notice to the employee is required “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 amendment does not require that the notice to the employee be in writing, although it would be best practice for employers to have a written record of compliance with the notice requirement. In some cases, such as that of a disciplinary warning or a performance evaluation, the notice requirement should be satisfied through the employer’s normal procedure of providing a copy of the warning or evaluation to the employee with a notation included on the copy that it has been forwarded to the employee’s personnel file.

Employee Access Is Limited

The amendment also provides employers with the right to limit the number of times that an employee may review his or her personnel record to “two separate occasions” per calendar year, but qualifies that right by providing that “the notification and review caused by the placing of negative information in the personnel record” cannot be counted against the employee’s right to two reviews in a calendar year.

Penalties For Violations Of The Personnel Record Statute

Employees do not have a right to sue for violations of the Personnel Record Law, but the Attorney General has jurisdiction to enforce the statute. A violation is punishable by a fine of not less than $500 nor more than $2,500 per violation.

Implications For Employers

Until there is further guidance from the Attorney General or the courts, employers should take the steps below and consult with legal counsel with additional questions.

  • Employers should promptly notify any employee who has had negative information added to his or her personnel record since July 31, 2010 and has not previously been informed of that addition.
  • Employers should implement a procedure to provide that employees are notified within ten days whenever potentially negative information is added to the employee’s personnel record.
  • Employers should coordinate with their human resources personnel to develop and implement a standard procedure for adding information to employee personnel files; identifying information that has the potential to negatively impact an employee’s employment prospects; and notifying an employee of the inclusion of such information in his or her record.
  • Employers with unionized employees should review their collective bargaining agreements for possible interaction with the new notification requirements.

Please contact CUTLER & WILENSKY LLP if you have questions concerning the amendment to the Personnel Record Law or would like assistance developing a new personnel record policy or procedure or updating your current policy or procedure.

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