Personnel Records (M.G.L.c. 149, s. 52C)
- A "personnel record" is a record that is or has been used, or may affect or may be used relative to an employee's qualifications for employment, promotion, transfer, additional compensation or disciplinary action.
- An "employee" for the purpose of this statute includes a person currently employed or formerly employed by an employer, but does not include a person who is employed, or was formerly employed, by a private institution of higher education in a position which may lead to tenure, is tenured, or which involve responsibilities similar to those in tenure-track positions.
- An "employer" for the purpose of this statute is an individual, corporation, partnership, labor organization, unincorporated association or any other legal business, public or private, or commercial entity including agents of the employer.
- A current or former employee who makes a written request to review the employee's personnel records must be given an opportunity to review the records within 5 business days of the request during normal business hours at the place of employment.
- Similarly a current or former employee must be given a copy of the employee's personnel record with 5 business days of submission of a written request of a copy.
- An employer must notify an employee within 10 days of the employer placing in the employee's personnel record any information that negativiely affects the employee.
- An employer is not required to allow an employee to review the employee's personnel record on more than 2 separate occasions in a calendar year. However, the review caused by the placing of negative information in the employee's personnel record is not deemed to be one of these 2 annually permitted reviews.
- If the employee disagrees with any information in his/her personnel records, the employee may submit a written statement explaining the employee's disagreement, which statement shall become part of the employee's personnel record. The statement must be included when this information is transmitted to a third party as long as the original information is retained as part of the file.
- In Meehan v. Medical Information Technology Inc., 488 Mass. 730 (2021), the SJC held that a termination of employment for a violation of M. G. L. c. 149,s. 52C, constituted a public policy exception to at-will employment. The statutory right of rebuttal provided in M. G. L. c. 149, s. 52C, is a legally guaranteed right of employment, and therefore termination from employment for the exercise of this legally guaranteed right fits within the first public policy exception to employment at will.
- An employer of twenty or more employees must retain an employee's complete personnel record without deletions or expungement from the employee's date of employment to a date three years after the employee's termination of employment. In any cause of action brought by an employee against such employer in any administrative or judicial proceeding, the employer must retain any personnel record which is relevant to such action until its final disposition.
- A failure to maintain and preserve personnel records in violation of M.G. L. c. 149, s. 52C, permits the inference that an employer sought to conceal its unlawful conduct. Charles v. Leo, 96 Mass. App. Ct. 326, 345 (2019)
- Whoever violates this statute may be punished by a fine of not less than five hundred nor more than twenty-five hundred dollars. This statute is enforced by the MA Attorney General. A complaint can be filed online with the MA Attorney General as to Personnel Records at: Workplace Complaint.
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