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Massachusetts Employment Law Updates

As we head into the Fall, a handful of changes related to Massachusetts employment laws are worthy of consideration and action by our employer clients.

PERSONNEL RECORDS LAW

In August, Governor Patrick signed into law “An Act Relative to Economic Development Reorganization.” The Act included an amendment to the Massachusetts Personnel Records Statute, M.G.L., ch. 149 § 52C, that requires employers to notify an employee whenever any negative information is placed in an employee’s personnel file that “is, has been used or may be used” to negatively affect an employee’s qualification for employment, promotion, transfer, additional compensation or disciplinary action. The notification to the employee must be made within 10 days of the placement of information in the employee’s file.  

The amendment to M.G.L., ch. 149 § 52C does not change the definition of a personnel record. That definition is still quite broad, as it includes any document that may affect or be used relative to an employee’s qualification for employment, promotion, transfer, additional compensation or disciplinary action. The broad definition thus captures more than the personnel folders that store employment agreements and offer letters, performance evaluations, written discipline, payroll information and W-4 forms.

Many employers routinely place performance reviews, written warnings, counseling statements and performance improvement plans in employee personnel files. Moreover, many employers routinely have employees sign these documents before they are included in the employee’s file. For those employers, and for those documents, the new law’s notice requirement will not result in any change to present practices. Those employers who do not have employees sign performance reviews, performance improvement plans, counseling statements and warnings should now do so, as that step alone will ensure compliance with the new law, at least with respect to those categories of documents. The signature block should include an acknowledgement that the document will be placed in the employee’s personnel file.

The application of the new law to informal documents is less clear. In many workplaces, supervisors and managers routinely create handwritten notes or working files about employee performance issues. Supervisors or managers may create emails or other electronic records or communications that relate to employee performance issues. Whether these documents constitute negative information that has been or may be used to negatively impact an employee, such that the notification requirement of the new law would be invoked, is an open question.

We expect compliance strategies to be specific to each employer, and each employer’s unique business operation. That said, managers and supervisors must now assume that the creation of emails, notes and other documents that pertain to an employee’s performance might trigger the new law’s notification requirements. The new law was effective immediately, so at a minimum, we suggest that employers immediately take the following steps:

• Ensure that all formal performance reviews, disciplinary warnings, performance improvement plans, and counseling statements include an employee’s signature block that evidences the employee’s receipt of the document and acknowledgement that the document is part of the employee’s personnel record, as defined by M.G.L. ch. 149, § 52C, and ensure that these forms are properly completed

• Provide uniform guidance and training to supervisors and managers with respect to the documentation of employee performance issues, including but not limited to guidance on the retention and use of “supervisor’s files,” email communications by and between supervisors and managers and the use of informal handwritten notes concerning employee performance issues

• Update employer policies and practices to comply with the new law, including electronic communication policies

CRIMINAL REPORTS LAW

As we addressed in our August Client Advisory, Governor Deval Patrick recently signed a law that significantly revised the Commonwealth’s Criminal Offender Record Information System. The new law includes an amendment to M.G.L. ch. 151B (the Commonwealth’s Anti-Discrimination Statute) that has a direct impact on the hiring practices of most employers. Specifically, the amendment to chapter 151B prohibits employers from inquiring about a job applicant’s criminal offender record information on an initial written application for employment, with certain limited exceptions.

The amendment to Ch. 151B is effective November 4, 2010. We advise all Massachusetts employers to be mindful of this deadline, as most employers will need to revise their job applications by this date. Nutter’s Labor, Employment and Benefits group can assist you in making the necessary changes to your job applications, determining whether your company might fall within one of the law’s exceptions, and otherwise advising your company on the use of lawful background and criminal record checks.

EMPLOYER POLICIES SHOULD REFLECT NEW TEXTING BAN

Effective October 1, 2010, Massachusetts will join 29 other states and the District of Columbia in prohibiting texting while driving. The Commonwealth’s new Safe Driving Law prohibits all drivers from using a mobile phone, or other handheld device capable of accessing the internet, from composing, sending or reading electronic messages, or surfing the internet, while operating a motor vehicle. The prohibitions apply even while a vehicle is stopped at a red light or stop sign. The prohibitions do not apply if the vehicle is stationary and not located in a roadway.

Employers should update employee manuals and policies to ensure compliance with the new Massachusetts law. An employer’s diligent enforcement of policies prohibiting inappropriate use of handheld devices will protect its employees and other members of the public from the hazards associated with such use, and protect the employer from potential liability on the basis of inappropriate use by its’ employees.

This advisory was prepared by Liam O’Connell of the Labor, Employment and Benefits practice at Nutter McClennen & Fish LLP. For more information, please contact Liam or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.