Massachusetts recently enacted a significant amendment to the Massachusetts Personnel Records Statute, G.L. 149, §52C. The amendment now requires that “an employer shall notify an employee within 10 days of the employer placing in an employee’s personnel record any information to the extent that 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.”
While the Massachusetts Personnel Records statute already requires that employee records contain documentation that may affect or be relevant to an employee’s qualification for employment promotion, transfer, additional compensation or disciplinary action, this amendment imposes significant and potentially onerous obligations on employers to notify an employee when this information or documentation is collected. For formal disciplinary measures, such as written warnings, the notification requirement is clear. For other documents which “may be used, to negatively affect” an employee, however, there is a degree of uncertainty. While employers are often counseled to document certain instances of employee conduct and work related matters, management personnel must be cognizant that any internal memoranda, emails, texts or other forms of electronic communication relating to a specific employee could be construed as being records that triggers the notification requirements of this law and further requires that the communication or document be included in the employee’s personnel file.
In this regard, if this new disclosure requirement and scope of what constitutes a record are interpreted to their broadest sense, email correspondence between management employees that is critical of an employee’s performance, or shares other concerns regarding an employee, may need to be included in a personnel file and disclosed to the employee. This could lead to strained employer-employee relationships and increase the potential for litigation by disgruntled employees. Conversely, if an employer seeks to terminate an employee for performance related issues, the employee may seek to have the employer show all the documentation or proof, which would have, conceivably, needed to be included in their personnel file. While the new requirements place a greater burden on an employer, as of yet there is no private right of action for an employee under the personnel records law, and violations are enforced by the Attorney General’s Office.