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The personnel records puzzle: tips for employers

robarge-jacquelineTo many employers, responding to requests by current or former employees to review their personnel files might seem like a simple task.

Such requests, however, involve important and often subtle issues that employers need to consider carefully.

Many states – including five of the six New England states – have statutes governing how employers must respond to personnel records requests. These statutes often specify, for instance, which types of documents must be included in (or excluded from) an employee’s personnel file; how quickly an employer must respond to an employee’s personnel file request; and how frequently employees are entitled to review their personnel files.

Following is a summary (which is not intended to be exhaustive) of these various New England personnel records statutes. It is important for employers to be aware of their obligations under these laws, and to ensure that their policies and practices are tailored accordingly.

Massachusetts personnel records statute

Among the New England states, Massachusetts has the most detailed statute governing employee personnel records requests.

The Massachusetts Personnel Records Law, G.L.c. 149, §52C, defines a “personnel record” 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.”

In addition to this general definition, the statute specifies various categories of documents that Massachusetts employers with at least 20 employees must keep in each employee’s personnel file, until at least three years following termination of employment:

  • Employee’s name, address and date of birth;
  • Job title and description;
  • Pay rate and any other compensation paid to the employee;
  • Employment start date;
  • Job application form;
  • Resumes or similar documentation submitted by the employee;
  • Performance evaluations;
  • Written warnings;
  • Documents listing any probationary periods;
  • Waivers signed by the employee;
  • Copies of dated termination notices;
  • Any other documents relating to disciplinary action regarding the employee.

The statute specifies that “personnel records” do not include information or documentation relating to a person other than the employee insofar as disclosure of the material would constitute “a clearly unwarranted invasion of such other person’s privacy.”

This might include, for instance, sensitive information concerning a co-worker who complained about the employee.

Upon written request, a current or former Massachusetts employee must be allowed to review his personnel file within five days, during regular business hours, at the employee’s regular place of employment.

Additionally (or alternatively), an employee is entitled to receive copies of his personnel records within five days of a written request to the employer.

After reviewing his personnel records, if the employee disagrees with any information contained in the records, the employer and employee may agree to remove or correct the information.

Absent such an agreement, the employee is entitled to submit a written statement explaining his position on the issue, which the employer must then maintain as part of the personnel file.

Under a 2010 amendment to the Massachusetts statute, whenever an employer places “negative” information into an employee’s personnel file, the employer must notify the employee within 10 days.

This includes, for instance, disciplinary notices or memos, documents addressing attendance or performance issues, and correspondence between managers and human resources regarding inappropriate conduct on the employee’s part.

Finally, an employee is entitled to review his personnel records on only two separate occasions during a calendar year. This limitation, however, does not apply to a request prompted by the placement of negative information in an employee’s personnel file.

Other New England personnel record statutes

With the exception of Vermont, each of the other New England states has a similar statute addressing employees’ rights to review their personnel records.

Connecticut. The Connecticut Personnel Files Act, Conn. Gen. Stat. §31-128a, gives current and former employees the right to review their personnel files during regular business hours, at a location at or reasonably near their place of employment, within “a reasonable time” following a written request.

A Connecticut employee is also entitled to receive copies of his personnel records within “a reasonable time” following a written request to the employer. The employer may charge a reasonable fee for copying the records.

The Connecticut statute defines a “personnel file” as “papers, documents and reports pertaining to a particular employee which are used or have been used by an employer to determine such employee’s eligibility for employment, promotion, additional compensation, transfer, termination, disciplinary or other adverse personnel action including employee evaluations or reports relating to such employee’s character, credit and work habits.”

Conversely, the statute specifically excludes various materials from the definition of a “personnel file,” including medical records, job references from third parties, stock option or bonus plans records, and documents relating to investigations of losses, misconduct and suspected crimes.

Like the Massachusetts statute, the Connecticut statute entitles an employee to add to his personnel file a written statement addressing any information in the file with which the employee disagrees.

Finally, an employee in Connecticut is entitled to review his personnel file on only two separate occasions during a calendar year.

Maine. Maine’s personnel records statute, M.R.S.A. Title 26, §631, provides that within 10 days following its receipt of a written request, an employer must permit a current or former employee to review and obtain copies of the documents in his personnel file.

This right is limited to one request by an employee per calendar year.

The Maine statute provides that a “personnel file” includes, but is not limited to, “any formal or informal employee evaluations and reports relating to the employee’s character, credit, work habits, compensation and benefits and non-privileged medical records or nurses station notes relating to the employee that the employer has in the employer’s possession.”

New Hampshire. The New Hampshire Employee Access to Personnel Files Law, N.H.R.S.A. §275:56, requires employers to provide employees with “a reasonable opportunity” to review and obtain copies of the documents in their personnel files.

Although the statute does not define a “personnel file,” it specifically excludes certain types of materials, including health records and documents relating to a law enforcement or “government security” investigation.

Like the Massachusetts and Connecticut statutes, the New Hampshire law gives an employee who disagrees with information contained in his personnel file a right to add a written statement to the file explaining the employee’s position.

Rhode Island. Finally, Rhode Island’s Inspection of Personnel Files Law, G.L. §28-6-1, provides that within seven business days following a written request, an employee must be allowed to review his “personnel files which are used or have been used to determine that employee’s qualifications for employment, promotion, additional compensation, termination, or disciplinary action.”

This right is limited to three requests by an employee in any calendar year.

The Rhode Island statute excludes certain materials from the definition of “personnel files,” including job references and reports from prior employers, records prepared for use in civil, criminal or grievance proceedings, and certain confidential “managerial records.”

Tips for employers

Employers receiving personnel records requests from current or former employees should carefully review any applicable state laws to ensure that they comply with their obligations.

In particular, an employer should be aware of any required timeframe for its response to an employee’s request, and of any limitations on the number of requests an employee is entitled to make within a given time period.

An employer should make certain not to produce any documents — such as medical or investigatory records — that, by statute, do not constitute “personnel records.”

Conversely, an employer must ensure that its response to a personnel records request includes all documents required by statute — even if, as is often the case, not all of the documents are stored in a single location.

Finally, employers should pay particular attention to any unusual requirements under their states’ laws, such as the provision of the Massachusetts statute requiring employers to notify employees whenever negative information is added to their personnel files.

Jacqueline M. Robarge is an attorney at Schwartz Hannum in Andover, Massachusetts, which represents management in labor and employment law matters.

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