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Employee handbooks and company policies

Employee’s right to disciplinary records: Employer must produce all records, including supervisor notes, not just those in the HR file

The Massachusetts Personnel Records Act compels an employer to provide certain documents within five business days of an employee’s request for his personnel file. In addition to performance appraisals and job descriptions, the employer must produce any other documents relating to disciplinary action regarding the employee. The language is deliberately broad and mandatory. It allows employees to have unfettered access to information that is the basis for an adverse employment action.

The statute gives an employee the  right to “submit a written statement explaining the employee’s position which shall thereupon be contained therein and shall become a part of such employee’s personnel record.” An employee can’t exercise his or her right to challenge the employer’s position if the employer erroneously only produces what is kept in the Human Resources file.

The Massachusetts Appeals Court’s decision in Kessler v. Cambridge Health Alliance, 62 Mass. App. Ct. 589 (2004) is on point. After his termination from employment, the plaintiff made three written requests for his personnel file. Suspicious that the employer’s response was incomplete, the plaintiff wrote his employer that he sought copies of all documents which were held in any manager’s file related to his termination. The employer acknowledged that it had correspondence that was unflattering to the plaintiff but was not included in his personnel file.

The Appeals Court agreed with the employee’s right to inspect these documents, “Implicit in the personal right set out in §52C must be the right to seek a judicial determination whether a document is a ‘personnel record’ as defined in the statute and therefore constitutes a part of, and must be physically included in, the personnel file.” Id. at 597. If such documents are personnel records, they are subject to review by the employee “who then will have the right to correct or comment on the information contained therein, or seek its expungement.”  Id.

 

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464
617-969-2900

pam@pamsmithlaw.com

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