Included in the Act Relative to Economic Development Reorganization, signed into law by Governor Patrick and effective August 1, 2010, is a little noticed amendment to the Personnel Records statute that now requires employers in Massachusetts to notify an employee when any information is placed in the employee’s personnel record that has been 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.” The notice of such action must be given to the employee within 10 days. The law does not specify how the notice must be given. The law does not include any provision for requiring notification to employees of negative information already existing in a personnel record prior to the effective date of the Act.

The Personnel Records statute already requires employers to maintain in a “personnel record” documents that are, or may be, used relative to the employee’s “qualifications for employment, promotion, transfer, additional compensation or disciplinary action.” The statute broadly includes the following documents within the definition of “personnel record”: all employee performance evaluations, including but not limited to, employee evaluation documents, written warnings of substandard performance and any other documents relating to disciplinary action regarding the employee. The new provision now for the first time obligates the employer to take concrete steps to notify the employee where negative information is placed in the personnel record. While the amendment has potentially far reaching consequences for managers and human resource personnel, it must not be overlooked that the amendment applies only to documents that are required to be placed in the “personnel record” in the first instance.

The amendment also limits an employer’s obligation to permit the employee to review the personnel record to no more than two separate occasions in a calendar year. However, any review that results from a notice of negative information does not count towards the annual limit of two inspections.

 


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