Mass-Peculiarities: An Employers Guide to Wage & Hour Law in the Bay State 2022 Edition

© 2022 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2022 ed. | 157 the employee will be subject to disciplinary action.” 930 The statute provides little guidance as to what information meets these requirements and, as such, creates ambiguity. 931 Nor have the courts or the Massachusetts Attorney General provided guidance as to the meaning of the amendment. A personnel record cannot 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.” 932 Under the law, an employer and an employee may agree to remove information from a personnel record “for any reason.” 933 If there is a disagreement as to whether information should be included in the record, “the employee may submit a written statement explaining the employee’s position,” which will become part of that employee’s personnel record and must be included when the record is transmitted to a third party. 934 If an employer includes information in a personnel record that it knows or should have known to be false, the employee can seek to have the information expunged “through the collective bargaining agreement, other personnel procedures or judicial process.” 935 The Personnel Records law requires all employers to provide an employee or former employee with an opportunity to review his or her personnel record during normal business hours at the employer’s place of business within five business days of the employee’s written request. The law also requires employers to provide an employee or former employee with a copy of his or her personnel record within five business days of the employee’s written request. 936 Employers may limit the frequency of employee requests to review personnel records to twice per year. 937 However, a review stemming from the placement of negative information into an employee’s personnel record does not count as one of the two annually permitted reviews. 938 930 Id. 931 For example, it is not clear whether an employer is required to not ify an employee of a casual e-mail exchange between managers crit icizing an employee’s performance; whether an employer must not ify an employee each t ime he or she makes a ministerial t imekeeping error; or whether an employer is required to not ify an employee of negat ive information documented during an internal invest igat ion that last s more than ten days. It also is not clear when and how the determinat ion is made as to whether informat ion “may be used” to negat ively affect the employee. 932 M.G.L. ch. 149, § 52C. 933 Id. 934 Id. 935 Id. One court has made clear that correct ing or expunging false informat ion is the only available remedy for allegedly false informat ion in a personnel record. Stevenson v. Amazon.com, Inc. , 2017WL 758467, at *2 (D. Mass. Feb. 27, 2017). 936 M.G.L. ch. 149, § 52C. 937 Id. 938 Id.