Divided Appeals Court Panel Highlights Gap in Personnel Record Law

In Massachusetts, as in many other states, the Legislature has adopted a personnel record law that specifies documents and information that every employer must maintain in an employee’s personnel record, such as documents relating to an employee’s qualifications and possible promotions, transfer, or discipline. For instance, many employers must include an employee’s job description and rate of pay, job application and resume, performance reviews, warnings, and termination notices. Employees have the right to review or receive a copy of their personnel records on request, and employers must notify employees if negative information is put into their personnel records. In order to promote accuracy of personnel records, the law allows employers and employees to agree to remove or correct information in these files, and if an employee disagrees with information contained in their personnel record, they have the explicit right to submit a written response, which the employer must include whenever they transmit the disputed information to a third party (such as a potential future employer).

In the recent case of Meehan v. Medical Information Technology, Inc., the Appeals Court considered what, if any, protections apply to employees who decide to take advantage of these legal rights. In Meehan, the plaintiff employee was placed on a performance improvement plan. He disagreed with the purported performance issues and exercised his right to submit a written response for his personnel file. He was then fired, and he claimed that he was terminated solely because he submitted the rebuttal, and that his termination was illegal because it was based on his assertion of a legal right. The majority of the Appeals Court held that, even if Meehan’s termination was in retaliation for using his legal right to include a written statement in his personnel record, that did not violate the state’s public policy. (Judge Meade, the author, was in the minority of the original three-judge panel, but because enough other Appeals Court judges agreed with him, two senior colleagues joined the panel to vote with him.) The majority started from the premise that employment in Massachusetts is typically at will, and unless a statute provides specific protection, courts will only intervene against an employer’s termination decision if it violates a strong and established public policy. The majority focused on language from a past case stating that issues involving internal administration of an organization do not generally rise to the level of protection under the public policy doctrine. It held that the personnel record law only governs internal records of employers, and that it is not sufficiently important to warrant protection.

Two judges (who had been in the majority of the original panel) dissented, countering that denying an employee like Meehan protection for asserting his undisputed legal rights would undermine the Legislature’s goals. After all, if employers could decide to fire any employee who took issue with inaccurate information in their personnel records, employees would stop exercising their rights under the personnel record law. Judge Henry wrote for the dissent that the personnel record law is intended to allow employees to correct or respond to information because the contents of a personnel record do matter beyond a particular employer – a future employer could ask for a release and get the personnel record, and then potentially make assumptions or take action based on what it finds. The personnel record is also frequently important in litigation, which the Legislature recognized by requiring employers to maintain personnel records for 3 years after an employee’s separation, or longer if a legal proceeding or investigation by the Massachusetts Commission Against Discrimination, Civil Service Commission, or other agency is pending. In order to balance somewhat the playing field between employers and employees, the dissent would have held that public policy protects employees from termination for exercising their rights under the personnel record law.

In this case, the dissent is more persuasive in its understanding and analysis of the protections the Legislature intended by enacting the personnel record law. The majority’s ruling, if allowed to stand, leaves employees without recourse from retaliation for exercising their legal rights. An employer could set a policy that any employee who submitted a response to information in their personnel record, or even any employee who asked for a copy of their personnel record, would be immediately fired, and the majority would find that permissible. The Supreme Judicial Court should grant further appellate review of Meehan and adopt the reasoning of the dissent.

Regardless of the outcome of Meehan, however, the disagreement about anti-retaliation protections highlights a few shortcomings of the personnel record law. The personnel record law is located in the same chapter as some important wage and hour laws, but unlike the laws governing timely payment of wages, the personnel record law can be enforced only by the Attorney General, not by individual employees and their lawyers. The Attorney General does not have the resources to investigate or litigate every violation of the personnel record law. And more importantly for this situation, the Legislature provided broad protection by statute against retaliation for employees who “seek [their] rights under the wage and hour provisions of this chapter,” but this language does not generally apply to the personnel record law. The Legislature should act to bolster the personnel record law and correct both of these issues – it would be quite simple to expand the anti-retaliation statute to cover all rights under the chapter rather than only wage and hour provisions, and to include the personnel record law in the list of laws covered by the strong remedies of the Wage Act. Then employees would be empowered to hold employers accountable if they failed to meet the requirements of the personnel record law, and particularly if they retaliated against employees for exercising their rights.

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