Employers must now affirmatively notify an employee within ten days of placing negative information in an employee’s personnel record.
Under the personnel records statute, a personnel record is broadly defined 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.” Read literally, this definition encompasses both formal and informal files, and could be interpreted to include a variety of information that may be used to negatively affect an employee’s employment, such as e-mails and notes that concern potential discipline or the future promotion potential of an employee.
The reach of this broad legislation remains to be seen as courts try to decipher the intent behind it. In the meantime, employers should:
- Require employees to sign and acknowledge receipt of evaluations, performance plans, warnings, and similar documents that contain information that objectively could be considered to be negative.
- Evaluate carefully whether less formal documents are "personnel records" and, if so, whether the record contains negative information that requires notification.
- Provide any required notification in writing.
- Train supervisors on how to properly document employment issues and the risk of maintaining unofficial personnel files.
- Update all relevant policies and advise appropriate personnel of their notification obligations.
The new law limits an employee’s right to review their personnel record to no more than two occasions per year. However, review requests caused by the notification of negative information are not subject to the annual limit.
Individual employees cannot sue their employers for violations of this law, but the Attorney General, who is tasked with enforcing it, may seek fines between $500 and $2500 for each violation.