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Efforts to Clarify Employers' Duty under 2010 Massachusetts Personnel Records Statute Amendment Sputter

  • June 1, 2012

Since the Massachusetts Personnel Records statute was amended in 2010 to place an affirmative duty on employers to notify employees of certain additions to a “personnel record,” Massachusetts employers have been concerned that the amendment was too vague and broad to be workable.  At the urging of management-side representatives, the Massachusetts Attorney General’s Office has sought assistance from management-side and employee-side representatives to draft clarifying legislation.

The amendment to the Massachusetts Personnel Records Statute, Mass. Gen. Laws c. 149, § 52C, effective August 1, 2010, says,“. . . An employer shall notify an employee within 10 days of the employer 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.. . .”  (For more information, see our article, Update on Amendment to Massachusetts Personnel Records Statute.)

In early 2011, the Massachusetts Attorney General’s Office convened a committee of Massachusetts management-side attorneys and employer representatives to propose changes to the amendment that the Attorney General could incorporate in clarifying legislation.  After the management-side committee submitted its proposal in mid-2011, the Attorney General’s representatives convened a labor/employee-side committee to review the management-side proposal with the goal of developing a compromise piece of legislation.  

The “compromise” legislation recently was forwarded to the management-side committee by the Attorney General’s Office. To say the least, it is a major disappointment for several reasons.  Most important, it does not solve the vagueness and overbroad problems created by the original amendment.  

The employee-side committee also proposed additional changes to the personnel records law that go well beyond merely attempting to clarify employers’ obligations under the amendment.  For example, the employee-side committee proposed to increase the number of times during the course of a year that an employee may review his or her personnel record and to make oral requests acceptable.  The proposal also would add substantial penalties, including treble damages, for violation of the statute and a strict evidentiary penalty for failure to comply with the amendment.  (The employee-side proposal states, “[I]f an employer, for any reason, has not included a written document or electronic record in an employee’s personnel record and therefore has not notified the employee pursuant to this section, such written document or electronic record shall not be admitted at the request of or otherwise used by the employer in any such administrative or judicial proceeding.”)

The members of the management-side committee have made clear to the Attorney General’s Office their objections to the employee-side proposal.  The hope is those will resonate, but it is unclear what will happen next. The Attorney General’s stated goal is to explore having further discussions with both sides to determine if it is possible to arrive at a compromise.

We will continue to keep you updated about developments as warranted. Employers are encouraged to contact their Jackson Lewis attorney with any questions regarding the notification requirement.

©2012 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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