Under the Massachusetts Personnel Records Law, G.L.c.149, section 52, the Massachusetts legislature has placed an affirmative obligation upon Massachusetts employers with 20 or more employees to abide by the requirements of how to maintain employee personnel records. The statute does not speak in terms of whether an employer should maintain records but places an affirmative obligation upon employers to conform to its requirements. And, if they do not, the statute gives aggrieved employees a right to filing a complaint with the Attorney General which would then give rise to potential fines. In 2010, the Personnel Records Law was amended to impose an affirmative duty on employers to notify their employees whenever any negative information is added to their personnel record. In order to better understand an employer's requirements under this law, let's run through its important provisions step by step as follows:
1. What is considered a personnel record under the statute? The current law defines a personnel record in the very broadest of terms as "any record kept by an employer that identifies an employee to the extent that the record is used or has been used, or may affect or be used relative to that employee's qualifications for employment, promotion, transfer, additional compensation or disciplinary action." Each personnel file must contain the following information:
*Name, address, date of birth, title and job description.
*Salary or hourly wage and any other paid compensation.
*Starting date of employment.
*Job application and any resume submitted.
*All documents relating to performance, including evaluations, written warnings, information relating to disciplinary actions, list of probationary periods or waivers signed by the employee and
* Copies of dated termination notices.
Not only are an employee's records as maintained by a human resources department "open season" to a request but so too are any of that employee's employment information maintained in any separate files by individual managers or supervisors. Quite often, the information contained in these files is kept as part of the human resources employment file. Either way, in some cases, the most damaging information regarding a company's handling of a particular employee can be found in these individual supervisor's files. At the same time, the statute excludes from its definition of personnel record information anything of a personal nature that would constitute clearly an invasion of privacy. In some cases, an employer will use this as a shield to not producing any records relating, for example, to a sexual harassment investigation when private information regarding employees is present.
2. Does an employer need to notify an employee after there has been disciplinary action taken against that employee? As a result of the 2010 amendments to the statute, an employer is under an ongoing affirmative obligation to notify an employee each and every time new disciplinary action has been taken against that employee. Not only must an employer to notify an employee under these circumstances, but the notice to the employee must occur within 10 days of any disciplinary notice being placed in that employee's personnel file. In fact, the ten-day notice requirement could be triggered if, for example, there are negative communications between managers which result in written information that may later negatively affect an employee's employment. If these communications are not placed in the file then technically an employer can argue that its obligations did not arise under the statute.
3. How does an employee gain access to his or her personal employment file? The Personnel Records Act allows employees, upon written request, to review their personnel file during normal business hours and/ or to obtain copies of the records, as well. The employer's obligation to attend to such requests can occur up to two times in a calendar year. The employer is required to provide such information no more than five days from the request by an employee to do the same.
4. Once an employee reviews a file what if there is a need to make a request to change or correct the information contained in that file? An employee is permitted to challenge information in that employee's personnel file. An employee may request that any inaccurate information is removed or corrected. The Personnel Records Act places an affirmative obligation upon an employer that once an employee makes a written request for correction or removal that the employer both keeps the "challenge" in the file for as long as the matter is open. Furthermore, the statute also requires that in the event the employer sends the information contained in the personnel file to a third party that the challenge by the employee is transmitted with the rest of the file.
5. How long does an employer have to retain my personnel file? The rule is simple and straightforward. Under the statute, an employer must maintain an employee's personnel file for three years after that employee leaves his or her employment. The file is also to be maintained without any deletions or expungement of information in the file by the employer. On this point, the Katz Law Group has been involved with cases where information has been deleted or expunged by an employer after the fact. In those situations where this has occurred, there is a glaring error between an earlier employment file and the same file after the employee has left. This led in a couple of instances to assisting in supporting claims before the MCAD.
6. Are there any penalties for when an employer violates any one or more provisions of the statute? The law is clear: It provides for a criminal penalty in an amount of not less than $500 and not more than $2,500 against whoever violates its provisions. The enforcement of the statute rests, of course, with the Commonwealth of Massachusetts Attorney General. There is no civil monetary relief against an employer who violates the statute. However, as stated before, the violation of the statute in some cases can be rolled into a larger claim for discrimination or harassment and be very powerful evidence that not only was an employer conducting itself in an unlawful manner but it was also violating the employee's rights under the Act. In some cases, where documents are not turned over by the employer but later the employer attempts to produce those documents in association with a civil case the employee may challenge those documents as manufactured after the fact.
Whether you are an employee or an employer the Katz Law Group has been on both sides of the employment fence. We can protect your rights if you are an employer and, if you are an employee, we can help assist you in your request for your personnel records. Please give us a call at 508-480-8202 to find out how we can help you in protecting your legal rights.