Requesting your personnel file
Generally speaking, current and former employees of Massachusetts employers have a right to request a copy of their personnel file. In order for the request to fit within the scope of the Massachusetts Personnel Records Law, however, it needs to be done in writing. Email is sufficient.
There are many different types of employers, so it is impossible to speak generally as to whom the request should be directed. That said, sending it to the highest person the employee knows and/or has contact information for in a Human Resources department can be effective.
There are no magic words required for the request. Something as simple as the following is sufficient:
Dear [INSERT NAME]:
It is my understanding that in Massachusetts an employee is entitled to receive a copy of his personnel file upon request within five business days under M.G.L. c. 149, s. 52C. Please send me a copy of my personnel file either by mail to [INSERT ADDRESS] or to this email address as soon as possible. Thank you.
Sincerely,
[EMPLOYEE NAME]
As noted, to the extent an employer receives a written request, it must give a copy of the file to the employee within five business days.
What does the law consider a personnel file -- or "personnel record," the term the statute uses -- to include?
The definition is broad: "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." Note that this information may go beyond records maintained in a file by Human Resources and may include documents maintained by individual supervisors to the extent they are used, as mentioned, to determine the employee's qualification for employment, promotion, transfer, additional compensation or disciplinary action.
Notably, a personnel file does not 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."
As to employers of twenty or more employees, to the extent the document exists, the personnel file includes:
the employee's name, address, date of birth, job title and description;
the employee's rate of pay and any other compensation paid to the employee;
the employee's starting date of employment;
the job application of the employee;
resumes or other forms of employment inquiry submitted to the employer in response to his advertisement by the employee;
all employee performance evaluations, including but not limited to, employee evaluation documents;
written warnings of substandard performance;
lists of probationary periods;
waivers signed by the employee;
copies of dated termination notices;
any other documents relating to disciplinary action regarding the employee.
If an employee disagrees with information contained in a personnel file, including an evaluation or written warning, he or she may seek removal or correction of the information with the employer. If the employer does not agree, the employee may submit a written statement explaining the employee's position, which must be maintained as part of the employee's personnel file.
If an employee has requested but has not received his or her personnel file, he or she may file a complaint with the Massachusetts Attorney General's Office.
There are certain exceptions to the above. Please contact Doorways to discuss your particular circumstances.
Doorways Employment Law, LLC specializes in employment law counseling, strategic advice and representation to employees and businesses across Massachusetts. Contact Doorways for a consultation.
