Archives for September 2010

New Rules on Personnel Actions for Massachusetts Employers

The process for adverse personnel actions is getting tougher and, perhaps, quite a bit more confusing in Massachusetts. That’s because the legislature recently tightened the rules on what goes into employee personnel files by requiring employers to notify workers when any information that’s placed in  their personnel files was or could be used to “negatively affect” promotions, pay, or other employment benefits.

Under the newly amended personnel file statute, employers must give the notice within 10 days of adding anything negative to an employee’s file. Since it’s hard to draw parameters around what’s covered, employers will need to err on the side of caution in giving notices. Documents such as performance reviews, regardless of content, and written warnings are the most likely targets of the new law, since they are often relied upon by employers to make promotional and wage decisions. Still, the best practice may be to implement standard procedures for sending notices to workers when anything other than run-of-the-mill hiring information is placed in personnel files. That way, employers can be sure they don’t transgress the new rules.

The personnel statute still permits employees to inspect and receive a copy of their personnel files on written request. The amendments also added a provision restricting the application of these rights to twice annually. Employees may not, however, be charged with one of their two annual inspections when a review is prompted by a notice of negative information being placed in a personnel file.

MCAD Authority Undercut by Court

The Massachusetts Commission Against Discrimination (MCAD) has been dealt a blow by the state’s Supreme Judicial Court (SJC). In an August 2010 decision, the Court held that the MCAD’s written guidelines on the Massachusetts Maternity Leave Act are not binding. The ruling calls into question a slew of MCAD ‘rules’ that previously were believed to carry the force of law, such as one granting maternity leave rights to men under state law.

The case involved a woman who was granted maternity leave beyond the eight weeks provided by Mass. Gen. L. ch. 149, 105D (Massachusetts Maternity Leave Act) and was not expressly informed by her employer that the statute’s job protection rights would not protect her during the extended leave period. She sued, claiming that written MCAD guidance on maternity leave required that such notice be given, and won a jury verdict of about $2.3 million. The SJC found that the MCAD’s guidance did not carry the force of law. Because neither the Maternity Leave Act nor any properly created MCAD regulation required employers to notify employees about benefits that might apply after eight weeks of leave were taken, the Act was not violated and the jury verdict was invalid. Because, however, no timely appeal of the verdict was filed, it was not overturned; the case  focused on whether counsel negligently failed to file a timely appeal. [Read more…]