Massachusetts Legislature Amends Personnel Records Statute

Unbeknownst to just about everyone, buried deep within the recently-enacted “Act Relative to Economic Development Reorganization” is language that significantly amends the Massachusetts Personnel Records Statute (Chapter 149, Section 52C), placing new administrative burdens on Massachusetts employers. Under the amendment, which became effective August 1, 2010, employers with at least 20 employees are now obligated to “notify an employee within 10 days of the employer placing in the employee’s personnel record any information to the extent that the information is, has been used or may be used to negatively affect the employee’s qualifications for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action.” Translated into English, this means that any time a document is created that could negatively impact an employee’s employment, and the employer retains the document, the employer must notify the employee of it within ten days of the document’s placement in the employee’s personnel record.

The term “personnel record” is defined very broadly. It includes any document kept by an employer that is or has been used or may be used to affect an employee’s employment, promotion, transfer, compensation, or discipline. This includes documents that may be maintained some place other than in the employee’s formal personnel file; for example, in files kept by an individual manager or supervisor. Consequently, this amendment could be interpreted as requiring employers to notify employees any time a manager drafts a quick note to herself about problems with an employee’s performance, or two supervisors exchange emails debating whether an employee should be promoted. Arguably, as long as the document is retained in some fashion – either in hard copy or electronically – the amendment requires that the employee in question be notified of it.

In a small nod to employers, the amendment limits the number of times an employee may ask to review his personnel record to twice during a calendar year. However, this limitation does not apply to record reviews that stem from the placement of a negative record in an employee’s file. The amendment does not change the employer’s obligation to produce the personnel record within five business days of the employee’s request. Failure to comply with the statute can result in a fine of between $500 and $2,500 for each violation. The Attorney General is responsible for enforcing the statute.

The personnel records amendment raises a number of significant questions for employers. What constitutes negative information? Does it really include a manager’s quick note about an employee written on a piece of scrap paper? And does tossing the note into her desk drawer mean that the manager has “placed” it in the employee’s personnel record? If so, what form does the employee notification take? Must a copy of the note be shown to the employee, or is it enough simply to notify him that the note was made? Unfortunately, the amendment does not come with an instruction manual, so only time will tell. Until these issues are settled by a judge, or the Attorney General issues some guidance, we recommend that employers proceed cautiously. All documents concerning an employee’s employment – positive and negative –should be kept in a centralized human resources file. Managers and supervisors should be cautioned that keeping their own “shadow” personnel records does not alleviate the obligation to notify employees of negative information that may be placed in those files. Procedures should be developed for notifying employees any time negative information is added to their personnel records. Such procedures should be clearly communicated to managers, supervisors, and anyone else who may handle employee information.

For more information, contact Stephen Reed: sreed@beckreed.com or (617) 500-8662. To learn more about Beck Reed Riden LLP, click here.

2010 Super Lawyers Magazine Names All Of Beck Reed Riden LLP’s Attorneys

Super Lawyers

For the sixth year in a row, Russell Beck and Stephen Reed have been recognized as Super Lawyers by Massachusetts Super Lawyers Magazine.  And Stephen Riden, also for the sixth year in a row, has been recognized as a Rising Star by the Magazine.

The title of Super Lawyer is given to 5% of the lawyers in the Commonwealth while the Rising Star designation recognizes 2.5% of lawyers under 40.  The Super Lawyers selection process is described in detail here.

Noncompete Reform Symposium

Employee Non-Compete Agreements and Job Creation: The Status of Law Reform a Year Later

The Boston Bar Association will be hosting a symposium on noncompete reform. The panelists will discuss the current law, proposed changes, and the policy behind each, after which the panel will open the floor to a questions and answers.

On the panel are:

To see the current noncompete bill, click here.

For more information, click here to view the Boston Bar Association’s event detail.

Steve Riden On Social Networking

Steve Riden is quoted in the latest edition of the Boston College Law School Magazine on the developing role of social networking in the legal industry.

The article, written by Tracey Palmer, profiles Steve’s efforts to unite BC Law’s alumni, students, professors, and staff in one extensive online community.

From the article:

Stephen Riden ’99, a partner in the new firm Beck Reed Riden in Boston, experienced the power of LinkedIn when he created a BC Law School group on the site in May 2008. In the beginning, he had modest expectations. “My hope was to attract at least 100 people to the group. I thought that would be enough members to generate some interesting discussions,” says Riden. “It was a complete surprise when the first 50 people joined. I never imagined that more than 1,000 people would want to be a part of this. Every single day there’s at least one new request to join the group—including weekends and holidays.”

Two years later, Riden’s LinkedIn group has nearly 1,300 members and hosts five subgroups for those interested in particular practice areas, including Estate Planning, Probate, and Elder Law; HealthCare; Intellectual Property; Public Interest Programs; and Solo Practitioners and Small Firms. “Members are using the site to reconnect and find others who have an interest in their various subspecialties,” says Riden. “When we promote an event, the attendance is high, and I see in the discussion groups that people are connecting with one another and sharing things like referrals and job information. So people are definitely engaged.”

In addition to the main BC Law LinkedIn group, Riden manages regional groups for alumni located in Boston, New York, Chicago, and Washington, DC. “The group has exceeded every one of my expectations,” adds Riden. “There are a variety of topics up on the discussion boards addressing everything from upcoming alumni events to career advice about becoming a law librarian. It’s great to see so many people drawing upon the collective knowledge of the BC Law community.”

Chambers USA Ranks Russell Beck

Russell Beck was honored in the June 2010 Chambers USA Guide for his litigation, trade secrets, and noncompete experience. Chambers USA recognized Russell’s litigation practice in the area of complex commercial litigation, including high-tech and IP matters, unfair competition claims, land use cases and healthcare disputes.

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