What You Need To Know About The Employee Records Statute

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All employers keep personnel files. However, a Massachusetts law requires certain employers to keep specific records and requires all employers to the extent that they have personnel records to follow certain procedures with regard to their employee records.

The particular law that regulates personnel records, G.L. c. 149, § 52C, is not a particularly well-known law. However, it behooves employers and employees to have some knowledge of their rights, duties and obligations under this statute.

G.L. c. 149, § 52C has broad definition of “personnel records”

The statute defines a “Personnel Record” to mean any“record kept by an employer that identifies the employee, and is (1) “used” or (2) “has been used” or (3) “may affect” or “be used” relative to that employee’s qualifications for:

• employment, or
• promotion, or
• transfer, or
• additional compensation or
• disciplinary action

As written, the statute does not distinguish the record keeping system, such as a file or a Human resource database or program. As a result, any internal or external written communication, whether by email, letter, memo or text along with any other social media system might constitute a personnel record under the statute.

However, the statute does state that

“A personnel record shall not include information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of such other person’s privacy.“

This exception allows employers to shield certain information that might otherwise fall within the definition of a personnel record in instances such as harassment or discrimination investigations or inquiries.

Statute has specific rights for employees to review their personnel records and to submit statements explaining adverse information

The following bullet points outline specific provision of the personnel records law that define how employers and employees deal with personnel records and in particular adverse evaluations or information that the employer has placed in its records.

Employer and employee definition

• An employee under the statute includes persons currently employed or previously employed by an “employer” as defined by the statute.
• The statute broadly defines employers to include almost any type of private or public employer and their agents.

Employee right to review personnel file

• The statute gives all employees and former employees the right to review their personnel record up to twice annually.
• An employer must furnish the employee a copy of the employee’s personnel record within 5 business days of submission of a written request by the employee.

Notification of adverse information put in personnel file

• An employer has to 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.
• The employee upon receiving notice that adverse information has been placed in his or her personnel record has five days to make a written request to review the information.
• Any request by the employee to review adverse information placed by the employer in the employee’s personnel record does not count towards the employee’s twice annual review of his or her personnel record.

Employee’s right to submit statement on adverse information

• An employee has the right to request that the adverse information placed in their personnel record be removed or corrected.
• If the employer refuses to remove or correct the information, the employee has the right to file their own written statement regarding the adverse information placed in their personnel record.

Employers statutory duty to maintain and furnish employees statement with adverse information

• Any submission by the employee explaining his or her position on the disputed personnel record must be maintained by the employer as long as the adverse information remains in the employee’s personnel record.
• If the adverse information in the employee’s personnel record is ever transmitted to a third-party, the employer must also transmit with it the employee’s position statement or explanation to that third-party.

Employee’s right to bring legal action for false information

• An employee has the right to bring a legal action to correct their employment record it the record contains any false information that the employer knew or should have known was false and which the employer refuses to correct.

Employers with twenty or more employees have duty to maintain additional information

• Employers with more than 20 employees have additional obligations under the statute to maintain specific employment records listed at the end of this summary article.

G.L. c. 149, § 52C is a criminal statute

• The statute is a criminal statute that carries a fine of not less than five hundred nor more than twenty-five hundred dollars.
• In the cases brought under G.L. c. 149, § 52C, the Courts have not found a civil cause of action for employees who have asserted that their rights under the statute have been violated.

Statute requires employers with twenty or more employees to maintain specific personnel records

To comply with the statute, employers with twenty or more employees must keep at least the following information or documents in an employee’s personnel record:

• Name,
• Address,
• Date of birth,
• Job title and description;
• Salary or hourly wage and any other paid compensation;
• Starting date of employment;
• Job application,
• Resumes, or
• Other employee responses to an employment advertisement;
• All employee performance evaluation documents, including:
  • evaluations,
  • written warnings of substandard performance,
  • documents relating to disciplinary action,
  • list of probationary periods or
  • waivers signed by the employee
• any other documents relating to disciplinary action regarding the employee, and.
• Copies of dated termination notices.

Also, if an employer of twenty or more employees elects to have a written personnel policy regarding the terms and conditions of employment, such personnel policy, as the same may be amended from time to time, shall be continuously maintained at the office of such employer where personnel matters are administered.