Changes to Personnel Records Law Require Immediate Action

The Massachusetts Personnel Records Act was amended earlier this month in two significant ways. First, and most importantly, there is now an affirmative obligation on employers to notify employees within ten days of placing negative information in their personnel records. Second, employers may now limit employee access to personnel records to two times per year, although any review triggered by the placing of negative information in an employee's personnel file does not count toward this limit.

Under Massachusetts law, personnel records include any documents, whether or not they are maintained in an official personnel file, that may affect an employee's eligibility for employment, promotion, transfer, additional compensation, or discipline. Accordingly, internal communications regarding performance issues or potential discipline could fall within this definition. To minimize potential liability, employers need to make sure that their supervisors understand that employee-related records, even if maintained solely by the supervisor, could be considered part of an employee's personnel records and subject to the disclosure requirement.

Employer Action Items

• Human resources personnel need to comply with the notice requirement immediately.
• To reduce the administrative burden, employers should consider amending their performance evaluation forms and disciplinary notices to add statements indicating that the employee has been informed that the document will be placed in the employee's personnel records.
• Written records of so-called "verbal" warnings and notes to the file documenting communications with employees regarding discipline or performance may also trigger the notice requirements. Accordingly, employers need to review their procedures and make sure that all such documents are shared with employees and not simply placed in the employees' files.
• Supervisors should be trained to understand the need to exercise care when putting negative information about an employee in writing, and that even email communications could trigger the disclosure requirement. Also, supervisors should be trained to forward to human resources any documents that could fall within the statutory definition.

For more information about the these changes, or for any employment law issue, please contact Laurie F. Rubin, the author of this Alert, at 617 456 8020 or lrubin@PrinceLobel.com.