Massachusetts recently enacted an important change for employers regarding their duties concerning the maintenance of personnel records. The law, passed just days ago, is effective retroactively to August 1.
Bottom line, the new law modifies the state Personnel Records Statute. That statute formerly required the employer simply to provide a copy of a personnel file to an employee requesting to inspect his or her file in writing and to allow employees to make responsive comments to statements contained therein. The new law now requires employers to notify an employee within 10 days of when negative information is entered into his or her personnel record and to allow employees to inspect their files upon notice of such information.
The definition of “personnel records” is broadly defined under Massachusetts law. The definition expressly covers any record that has or may affect the employee’s qualifications for employment, promotion, transfer, additional compensation, or disciplinary action.
So, any time an employer places negative information in an employee’s personnel file that can be used to make a decision affecting the employee’s qualification for employment, promotion, transfer, additional compensation, or disciplinary action, the employer must now tell the employee about such information within 10 days of it being placed in the personnel file. In addition, employers, must allow employees to inspect their personnel records each time such notification is provided.
HR professionals generally argue that best practice calls for providing notice to employees regarding negative information such as performance reviews or disciplinary notices, etc. Indeed, in the past, putting negative information in an employee’s personnel file without giving notice to the employee would have provided the employer with marginal if any benefit at all in the event of litigation. The credibility of any negative information is generally suspect if it is included without notice to the employee.
That said, one wonders if the new requirement might encourage some employers, whether lawfully or not, to keep a “shadow file” in addition to the personnel file for working use until they develop more formal documentation for submission to the personnel file and for notice to the employee. Such “shadow” files, or notes to the file without notice to the employee, can often backfire against the employer in litigation and now may well be unlawful if used when making employment decisions.
The law essentially tries to enact best practices. Whether it will encourage poor practice remains to be seen. In the meantime, employers should balance the risks of violation against the increased workload of stringent compliance. Among other things, violations of the new law can result in fines between $500 and $2,500.
