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Update on Amendment to Massachusetts Personnel Records Statute

  • September 17, 2010

Despite requests by several law firms, the Massachusetts Attorney General has decided not to issue an interpretive guidance or other interpretive aid for a broadly worded amendment to the Massachusetts Personnel Records statute that places an affirmative duty on employers to notify employees when adding new information to a “personnel record” that could negatively affect the employee’s employment or lead to disciplinary action.  (See, Massachusetts Personnel Records Law Amended to Add Notification to Employees.)

The amendment 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.. . .” It went into effect August 1, 2010.

Unofficially, for now, it appears that the Attorney General does not intend to enforce the new mandate aggressively by seeking fines against employers for non-compliance. Rather, the Attorney General intends to try to help “work things out” between the complaining employee and his or her employer.  Also unofficially, it appears the Attorney General will be concerned mainly that employees receive notice of the inclusion of documents that are likely to be used negatively and will not construe the amendment as broadly as might be arguable.

Because these are unofficial positions, we continue to recommend that employers err on the side of providing notification.

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

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