More than a year after going into effect, a Massachusetts employment law that requires companies to tell employees if they are adding negative information to their personnel files is causing some legal problems.
While the state says no one has violated the revised General Laws Chapter 149, Section 52C, issues have been brought up during litigation involving Massachusetts employment law.
Our Massachusetts employment lawyers recognize the benefits of the revised law, but also the potential downfalls and loopholes that it has created.
One such example is in a Boston discrimination case, a lawyer for the employee will request the plaintiff’s personnel file early in the case. If the employer tries to add negative information while the court case is active, the employee will point out that it shouldn’t be introduced as evidence because it would have been added in violation of the law.
In another case, an employee was fired after complaining about not being paid for work rendered. The employee was fired and sued, claiming the dismissal was based on retaliation. But as the case progressed, a personnel file showed up filled with criticism that was never before mentioned. And experts say the law was designed to avoid those types of situations.
But the flip side is that employers are forced to keep almost a daily tab of potential problems with employees, notify them and add them to a file in order to comply with the law and protect themselves in the event of a future lawsuit.
The other issue that has cropped up based on the law change is what exactly is a “personnel file,” which are the words stated in the revised law. Most might consider a personnel file a document or set of documents kept in a file drawer in a human resources department.
But some have brought up the question about whether e-mails written about the employee’s work performance should be considered part of their work file. But if so, then an employee who writes an e-mail about another employee and doesn’t include it in their file risks a violation. Also, that would require an employee to receive notice every time an e-mail is shared about work he or she is doing.
Some experts believe anything written about a worker should be considered his or her “file” and subject to the new law. While employees must be notified if anything is added to their file, they also have access to their files twice a year.
The number of complaints so far have been minimal and have been handled by the Attorney General’s Office. But some Boston employment lawyers have been meeting to try to clarify the statute and attempt to ensure that these issues are addressed quickly to avoid potential problems if lawsuits are filed in the future. Certainly, this is an issue that affects employees and employers throughout Massachusetts and should be handled in consultation with legal counsel.
Personnel issues continue to grow more complex. Staying in legal compliance, or defending your rights as an employee, requires knowledgeable legal assistance on both sides of the aisle.