Condo Media - August 2009 - 15

MASSACHUSETTS by Douglas A. Troyer, Esq. CAI Everything in Order Effectively Documenting Employee Personnel Files s of June 2009, the number of unemployed people in the United States has risen to 14.5 million, and the unemployment rate rose to 9.4 percent. Unfortunately, condominium associations and property management companies have not been spared this trend and have been forced to reduce their staff. As staff reductions and terminations continue, many terminated employees are requesting to review their employee files in order to evaluate whether they may have legal claims against their employer. Thus, proper documentation is essential to defending and preventing many employment-related claims, such as wrongful termination, discrimination and wage claims. Regional A medical condition or history, and require employers to maintain such information in a separate file. The statute provides guidance on what information or documents, to the extent they are prepared by an employer of 20 or more employees, should be included in an employee’s personnel record: 1. Name, address and date of birth of the employee 2. Job title and description 3. Rate of pay and other compensation paid to the employee 4. Starting date of employment 5. Job application, resumes or other forms of employment inquiry submitted to the employer by the employee 6. Any and all performance evaluations, including but not limited to, employee evaluation documents 7. Written warnings of substandard performance 8. Any and all documents concerning probationary periods 9. Any and all waivers signed by the employee 10. Copies of dated termination notices 11. Any other documents relating to disciplinary action Personnel records also can include notes, correspondence, e-mails, etc. created by individual managers and supervisors of employees if such documents are used or may be used to determine qualifications for employment, promotion, transfer, additional compensation, termination or disciplinary action. Thus, trustees, managers and supervisors should always be careful in creating documents of this type. Even if these types of documents are not physically placed in the employee’s file, they can be considered part of the personnel file and subject to production. News Request for Review The statute provides that “[a]ny employer receiving a written request from a [current or former] employee shall provide the employee with an opportunity to review his personnel record within five business days of such request. The review shall take place at the place of employment and during normal business hours. An employee shall be given a copy of his personnel record within five business days of submission of a written request for such copy to his employer.” Therefore, if an employee only requests to review his or her record, it is recommended that a representative of the employer be present during the review to make certain that no contents of the file are removed or altered. If an employee requests a copy of his or her file, the employer is required to provide the employee with a copy of the employee’s file within five business days of the employee’s request. Unfortunately, the statute does not contain any provisions concerning whether the employer can charge the employee for reasonable copying costs incurred by the employer in creating copies of the personnel file. The statute further provides that, if an employee disagrees with any information contained in his or her personnel record, the information may be removed or corrected by mutual agreement of the employee and the “Personnel Records” in Massachusetts Massachusetts law defines a personnel record as “a record kept by an employer that identifies an employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation, or disciplinary action.” M.G.L. c. 149, § 52C. A personnel record does not include information of a personal nature about a person other than the employee if disclosure would be an unwarranted invasion of privacy. Additionally, in response to privacy concerns raised by employees about their medical information, certain federal statutes (e.g., the Americans with Disabilities Act and the FMLA) require employers to keep confidential any information about an employee’s CONDO MEDIA • AUGUST 2009 15

Condo Media - August 2009

Table of Contents for the Digital Edition of Condo Media - August 2009