Other Bulletins
March 2001
Employment Law Newsletter
What Employers Need To Know About Personnel
Records
by Vanessa L. Smith
At some point, every employer will be faced with a request to provide the personnel record of an employee. Under Massachusetts law, an employer of twenty or more employees is required to maintain a personnel record for each employee. To minimize headaches when responding to these requests, employers should be familiar with the provisions of the Massachusetts personnel records statute. Following are some suggestions on how to respond to requests for personnel records.
What is a Personnel Record?
Massachusetts law defines the term “personnel record” broadly, to include a record kept by an employer that is used or has been used with regard to an employee’s qualifications for employment, and any information or documentation that may affect an employee’s promotion, transfer, additional compensation, or disciplinary action. In addition to this broad definition, the statute states that the following employee information, to the extent prepared by an employer of twenty or more, shall also be included in a personnel record:
- Name, address, date of birth;
- Job title and description;
- Rate of pay and any other compensation paid;
- Starting date of employment;
- Job application;
- Resumes or other forms of employment inquiry submitted to the employer in response to its advertisement;
- All performance evaluations (including employee evaluation documents);
- Written warnings of substandard performance;
- Lists of probationary periods;
- Signed waivers;
- Copies of dated termination notices; and
- Any other documents relating to disciplinary action regarding the employee.
What is Exempt from Disclosure?
In some instances, an employee’s file may contain personal information about another employee which, if disclosed, would invade the privacy of another employee. When responding to a request for a personnel record, the employer must remove all such information before releasing the record to the requesting employee to safeguard the privacy of other employees.
If an employee was the subject of a sexual harassment investigation, for example, investigative materials, including statements from other employees, may exist. Information contained in these documents may have formed the basis of disciplicinary action against the employee accused of harassment. In these situations, disclosure of the investigative materials involving the accused employee potentially may have a chilling effect on the reporting and investigation of sexual harassment claims. According to the Massachusetts Attorney General’s office, these investigative materials are exempt from disclosure.
In addition, medical records of an employee should be maintained in a separate file and should not be produced as part of an employee’s personnel record.
Where to Look for Records
Depending on the size and structure of individual businesses, employers’ filing systems for personnel information may vary widely, and employers may maintain separate files for employees’ salary and compensation information, evaluations, and disciplinary notices. When responding to a request for an employee’s personnel record, the employer should be sure to check all possible sources – including the office manager and all of the individual’s supervisors – for information and documents that fall within the broad definition of what constitutes a “personnel record.” Records in possession of a third party contracted to maintain employee records must also be produced.
When to Respond to a Request
Employees are entitled to review and/or to obtain a copy of their personnel record. If an employer receives a written request from an employee, the employer must provide the employee with an opportunity to review his or her personnel record within five business days of receipt of the request. The review should occur at the place of employment during normal business hours. Similarly, if the employee submits a written request for a copy of his or her personnel record, the employer must provide a copy within five business days of receipt of the request. An employee making an unwritten request should be asked to make the request in writing.
If the request comes in the form of a subpoena or court order, an employer should consult with counsel before producing an employee’s personnel record in order to confirm the validity of the subpoena or the court order.
How to Resolve Disputes with an Employee Regarding the Removal of Information
An employee may disagree with the employer about information contained in the personnel record. The employer and employee may agree to remove the disputed information. If an agreement is not reached, the employee may submit to the employer a written statement explaining his or her position about the disputed information, and the employee’s statement becomes part of the personnel record. As long as the disputed material is retained as part of the record, the employee’s statement must be included when the disputed material is transmitted to a third party.
If an employer places in a personnel record information the employer knew or should have known to be false, an employee may seek, by judicial process or otherwise, to have the false information expunged from the personnel record.
How to Maintain Personnel Records
An employer of 20 or more employees must retain the complete personnel record of an employee, without deletions of any information, from the date of the employee’s employment until three years after the date of the employee’s termination. When a former employee brings an administrative or judicial proceeding against the employer, the employer must retain the complete personnel file of the employee until final disposition of the action or proceeding.
Employers should maintain personnel records in typewritten or printed form or handwritten in indelible ink. They should keep them confidential. Personnel records should be kept in a private area to which other employees do not have access. Access to information in an employee’s record should be given on a need-to-know basis.
Enforcement of Statute
The Massachusetts Attorney General has the power to enforce the provisions of the personnel records statute. An employee who believes that his or her employer has wrongfully withheld all or part of a personnel record can file a complaint with the Attorney General. Upon receipt of a complaint, the Attorney General’s office will investigate. Failure to produce a person’s personnel record may subject an employer to criminal sanctions. The potential penalty for a violation of any provision of the statute is a fine of not less than $500 and not more than $2,500.
Tips to Ensure Compliance with the Personnel Records Statute
- Respond to requests for personnel records as soon as they arrive to ensure compliance with the five-day deadline.
- Carefully review personnel records before turning them over to the requesting employee to ensure the completeness of the record and to be sure that no private personal information about other employees is disclosed.
- Develop a system for maintaining personnel records to centralize storage of information and to safeguard the records of former employees for at least three years after they leave employment.
