Massachusetts’ New Personnel Records Law Requires That Employees Be Notified When Negative Report Placed In File

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.

• It is unclear whether employers now have to place all negative informal memos in the employee’s record, thus triggering notification.

• Will employers avoid creating a “situation” by not putting critical notes and memos in an employee’s file?

While the law seems to be an attempt at transparency, the likely effect is to push certain aspects of the employer-employee relationship deeper into the shadows and how companies and employees deal with this new development will be a reflection of the corporate culture of the employer.

Please note that this communication does not constitute legal advice. If you have a question about this topic or any other business law or employment matter, call or email The Brown Law Firm, LLC, a Massachusetts firm dedicated to business and employment law.

Boston Bar Assosiation