Articles Posted in Personnel Records

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.
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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.
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Effective November, 2010, Massachusetts employers can no longer ask about a criminal record on an initial written job application, a reform passed over the summer along with several others with respect to Massachusetts’ Criminal Record Information law (CORI) that won’t take effect until as late as 2012. In “banning the box”, Massachusetts becomes the first state in the nation to remove the criminal record question from initial job applications for both public and private employers. Employers can currently use the “box” on initial job applications to ask about criminal convictions and possibly weed out applicants. Under the new law, questions can be asked about a criminal history later in the process. This will allow some applicants with criminal histories to get a foot in the door and have employers consider their qualifications before dismissing them based on a mistake made in the past.

Employers can protect themselves, however, by adding statements to applications that employment is contingent on a satisfactory review of an applicant’s background check. This may still have the deterrent effect on a potential employee even though he or she is not asked to be explicitly about convictions on the application. It does, however, eliminate the “eureka” defense in termination cases – where employers sometimes conduct intensive investigations after-the-fact to find evidence of deception on the part of the employee to justify the termination even though it was not the stated reason for the termination. Below is table explaining the changes to the CORI law to take effect in phases by May, 2012:

Old CORI Law: Employers could use the “box” on initial job applications to ask about criminal convictions and weed out applicants
New CORI Law: “Ban the Box” – employers can’t ask about a criminal record on a job application. [Comment: employers can protect themselves by making a statement on the application that employment is subject to a satisfactory outcome of a background check.]

Old CORI Law: Felonies sealed after 15 years clean record New CORI Law: Felonies sealed after 10 years clean record
Old CORI Law: Misdemeanors sealed after 10 years clean record New CORI Law: Misdemeanors sealed after 5 years clean record
Old CORI Law: The waiting period for sealing starts after probation or parole
New CORI Law: The waiting period for sealing starts at the beginning of probation or parole Continue reading

On August 5, 2010, an amendment to Massachusetts G.L.c. 149 sec. 52C went into effect that has caught many employers and labor law attorneys off guard. Under the amendment, employers must notify employees whenever a negative report is placed in their files. However, here are some points and observations about the new law:

• Employees must be notified by employers within 10 days of “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.”

• There is no private right of action for employees to sue employers who violate the notification requirement, rendering the amendment toothless compared to the Massachusetts Wage Act, M.G.L. Chapter 149 § 148 et seq.) which has a private right of action to sue.

• Enforcement of the new personnel records law is the responsibility of the Attorney General’s Office, which can levy sanctions of $500 to $2,500 in addition to requesting compliance.

• The revised law could needlessly harm employer-employee relationships by blowing minor job performance issues out of proportion that, in the past, would have been minor, perhaps meaningless notations in a file.

• Employees can request to review their records only twice a year, not including views related to the filing of negative information. This is meant to reduce excessive requests from labor organizations during disputes with employers.
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MBA
Boston Bar Assosiation