HR Management & Compliance

New Massachusetts Law Changes Employer Obligations for Personnel Records

by Susan G. Fentin

Governor Deval Patrick recently signed the Massachusetts Economic Development Bill into law. The law, which is retroactively effective to August 1, includes some well-known provisions that authorize a new state sales tax holiday and grant tax breaks for certain businesses.

The bill, however, also contains several lesser-known provisions, including one that heavily affects employers. Buried more than 100 pages into the Economic Development Bill is a modification of the state Personnel Records Statute that now requires employers to notify an employee when negative information is entered into his or her personnel record.

Under the existing Massachusetts Personnel Records Statute, “personnel records” are defined broadly, including any record that has or may affect the employee’s qualifications for employment, promotion, transfer, additional compensation, or disciplinary action. That means the new law requires notification, within 10 days, any time an employer places information in an employee’s personnel record that has been or will be used to negatively affect the employee’s qualification for employment, promotion, transfer, additional compensation, or disciplinary action. Also, employees will now be entitled to inspect their personnel records each time such notification is provided.

In the past, employers simply had to honor an employee’s written request to examine or receive a personnel file copy within five business days and allow the employee to request changes to documents in the file. If the employer didn’t agree with the changes, the employee was entitled to write a rebuttal, which then became part of the file. This new requirement of advance notice creates an additional burden of uncertain scope.

While good personnel practices should already require that an employee be notified when the employer issues a formal warning or similar document, it’s unclear whether the new law’s requirements also extend to smaller items such as a supervisor’s notes or observations.

Until more information is available, employers will need to balance the risks of violation against the increased workload of stringent compliance, as violations of the personnel file statute carry fines between $500 and $2,500.

Susan G. Fentin is a partner with Skoler, Abbott & Presser, P.C., in Springfield, MA and the associate editor of Massachusetts Employment Law Letter, which will provide more information about this development in a future issue.

Skoler Abbott will be holding a Breakfast Briefing on this topic on Friday, September 12, at the Marriott Hotel in Springfield. For more information on attending this briefing, contact Susan Gay at (413) 737-4753.

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