Personnel Files Under Massachusetts Law
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Massachusetts law requires employers to keep certain records relating to employees, and to provide them to the employee upon written request.
Many employers are unaware of this requirement, and learn of it for the first time when they receive an employee request. Below is the basic information you need to know about the Massachusetts personnel file laws. Unlike many other issues under Massachusetts employment laws, there is no right for an employee to sue an employer for failure to provide a personnel file on request. It can be reported to the Attorney General's Office, who has the authority to enforce this requirement. There are also situations where an employee may have a claim if they were fired or disciplined in retaliation for asserting their rights under the personnel record law. What Employee Records Are Employers Required to Keep?"Personnel record" is defined by statute as "a record kept by an employer that identifies an employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee's qualifications for employment, promotion, transfer, additional compensation or disciplinary action."
For employers of twenty or more people, the statute requires that you keep this file, including name, address, date of birth, job title and description, rate of pay and specifics of any other compensation paid, the starting date, job application materials, performance evaluations, disciplinary records, and copies of termination notices. A good working definition for employers subject to this statute should include any documents that relate to the employee's hire, pay, and performance assessment. |
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Personnel Files: Employee's Right to Notice
Another thing many employers are unaware of is that you must give your employee written notice within 10 days if you are placing anything in their file that has been or may be used to negatively affect their employment status. The employee then has the right to add a written statement of their own to the file if they disagree with what has been placed there.
Personnel Files: Employee's Right to Review
Employees- including former employees- have a right to request either an in person review of their personnel file or a copy made for them. Employers are required to provide such a copy within five business days of the written request.
There is no specific form required for this request- a simple email to a supervisor or Human Resource department will trigger the 5 day requirement.
There is no specific form required for this request- a simple email to a supervisor or Human Resource department will trigger the 5 day requirement.
Personnel File: Retaliation
The statute itself contains no anti-retaliation provision. However, the Massachusetts Supreme Judicial Court has recently held that employee can bring a claim on public policy grounds if terminated in retaliation for availing themselves of any rights under the Personnel Record Statute.
That case involved an employee who submitted a written rebuttal, and alleged that the rebuttal was the sole reason for termination. The court made clear that submitting a rebuttal would not insulate an employee from termination for the conduct that resulted in a personnel file entry in the first place.
It does, however, mean employers should use caution when terminating or disciplining an employee after a rebuttal has submitted, or even after an employee has requested a copy of their file, to be sure that there are reasons for the action independent from the personnel file interaction.
That case involved an employee who submitted a written rebuttal, and alleged that the rebuttal was the sole reason for termination. The court made clear that submitting a rebuttal would not insulate an employee from termination for the conduct that resulted in a personnel file entry in the first place.
It does, however, mean employers should use caution when terminating or disciplining an employee after a rebuttal has submitted, or even after an employee has requested a copy of their file, to be sure that there are reasons for the action independent from the personnel file interaction.
How to Respond to a Personnel File Request
If you receive a request for a copy of a personnel record from an employee or former employee, you may wand to consult with an employment lawyer. First, to be sure that you are providing the right information and not violating any other employee's privacy rights in the process.
Second, because often the reason for the request is that the employee is considering legal action, especially if you receive a request from a recently terminated employee. That does not change the information you are required by law to provide, but it may be a good time to get an assessment of the situation, and what exposure you may be facing, so that you can address anything that needs to be addressed.
Second, because often the reason for the request is that the employee is considering legal action, especially if you receive a request from a recently terminated employee. That does not change the information you are required by law to provide, but it may be a good time to get an assessment of the situation, and what exposure you may be facing, so that you can address anything that needs to be addressed.
How Our Employment Lawyers Can Help
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If you have questions about the personnel records law, we can help. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
