Labor Law Changes

What You Don’t Know Can Hurt You!

By Cheri Crow, Attorney at Law, chericrow@attorneycrow.org

LAW UPDATES
Here are some recent changes in Massachusetts law applicable to Massachusetts employers.

PERSONNEL RECORDS
On August 5, 2010, Massachusetts passed an amendment to its law governing an employer’s personnel records. The law has remained unchanged in that within five (5) business days of such request, an employer is required to allow an employee or former employee an opportunity to review his personnel record at the place of employment during normal business hours or to provide a copy if requested.

The law defines “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. A personnel record shall include a record in the possession of a person, corporation, partnership or other association that has a contractual agreement with the employer to keep or supply a personnel record as provided in this section. A personnel record shall 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. Without limiting the applicability or generality of the foregoing, all of the following written information or documents to the extent prepared by an employer of twenty or more employees regarding an employee shall be included in the personnel record for that employee: the name, address, date of birth, job title and description; rate of pay and any other compensation paid to the employee; 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. A personnel record shall be maintained in typewritten or printed form or may be handwritten in indelible ink.

Additions to the Massachusetts law are that an employer must 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 qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action. Also, an employer is not required to allow an employee to review the employee's personnel record on more than two (2) separate occasions in a calendar year; provided, however, that the notification and review caused by the placing of negative information in the personnel record shall not be deemed to be one of the two (2) annually permitted reviews.

CRIMINAL HISTORY
Prior to November 4, 2010, an employer’s initial written application could ask if a job applicant had been convicted of a felony. As of November 4, 2010, Massachusetts has made it illegal for an employer to request on any criminal offender record information (CORI) on its initial written application form. There is an exception for employers who are obligated by law not to employ persons who have been convicted of certain types of crimes. Therefore, if your application for employment asks about a person’s criminal record in any way, you should remove this language immediately. If you believe that you fall under the exception, you should ensure that the exception applies to your business. There is nothing in the law, however, that prohibits an employer from asking an applicant who has proceeded past the initial application if that applicant has been convicted of a felony and if so, what felony and when.

PLANNING AHEAD

CORI changes effective February 2012
As of February 2012, an employer who obtains an applicant’s CORI must provide a copy of it to the applicant. Persons (companies) who annually conduct five (5) or more criminal background investigations must maintain a written criminal offender policy providing that it will (i) notify the applicant of the potential adverse decision based on the criminal offender record information; (ii) provide a copy of the criminal offender record information and the policy to the applicant; and (iii) provide information concerning the process for correcting a criminal record.

Also as of February 2010, CORIs will be accessible via the internet but access to the database will be limited. Among those who will be allowed to access the database will be a requestor or representative of the requestor who is evaluating current and prospective employees including full-time, part-time, contract, internship employees or volunteers. Criminal offender record information made available under this section shall be limited to the following: (i) felony convictions for 10 years following the disposition thereof, including termination of any period of incarceration or custody, (ii) misdemeanor convictions for 5 years following the disposition thereof, including termination of any period of incarceration or custody, and (iii) pending criminal charges.

Sexual Harassment
Massachusetts employers who employ six (6) or more persons are required to adopt sexual harassment policies informing employees that harassment is unlawful and this it is also unlawful to retaliate against an employee for complaining of harassment or for cooperating in an investigation into allegations of sexual harassment. The Massachusetts Commission Against Discrimination has adopted a model sexual harassment policy that employers may use to comply with the requirement to have a policy. It can be found at www.mass.gov/mcad/harassment.html

Massachusetts employers are also required to provide their sexual harassment policy to employees annually and to all new employees upon hire. One way to remember to distribute the policy annually is to do it at the beginning of each new year and to have some record (a read receipt for an email or a signed receipt) that each employee has received the policy.