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.