New Mass Employee Records Law Requires Notice

A surprise amendment to Massachusetts personnel records law requires employers to notify employees whenever a negative report is placed in their files.

How enforceable the change will be is open to question because employees cannot sue employers who violate the notification requirement. Others complain the law is burdensome, unclear and could cause undue labor relationship issues by exacerbating minor performance issues that in the past would be tucked away in a file.

The amendment requires employers to notify employees 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."

Under the amendment, employees can request to review their records only twice a year, not including views related to the filing of negative information.

Enforcement of the new personnel records law falls on the Attorney General's Office, which can impose sanctions of $500 to $2,500, though simply requesting compliance is expected to be the more typical response. Last year the AG's Office responded to 91 employee complaints and issued as many letters directing employers to follow various labor laws.

Employers are left to wonder whether informal reports like emails or management notes about employees need to be filed as personnel records, which would trigger the notification requirement. Management attorneys typically advise clients to scribble notes on any poor performance in case the issue becomes chronic and results in a firing. If the employee sues, the employer will be backed in court by the trail of notes. The notification requirement may unnecessarily create an antagonistic situation between employer and employee.