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Interesting new provision. I guess I can see the Catch-22 aspect to it that you note. However, I am not sure that in practice things will work all that differently than they do now.

What exactly would be the purpose of stuffing an employee's file full of negative information in secret? My assumption would be that employees should be informed of negative information being placed in their file as a form of counseling, so that they can be put on notice and improve their performance. Not doing so just makes it look like the employer is making a book on the employee to support a pre-determined decision to terminate.

I practice in Texas, which is a fairly anti-employee state. In Texas, employers are not even required to give employees access to their HR file under virtually any circumstances. So employees never know what has been placed in the file and said about them until it is used against them in a lawsuit or in the form of a negative reference.

On balance I think it works in an employer's favor to be open and honest with employees about how their performance is being assessed. If something is important enough to document it in a permanent file, then it is important enough to warrant having an honest conversation with the employee about the issue. This creates a record of fair-handed treatment that will likely head off many employment-related disputes. And for those disputes that do make it to the courthouse, a long record of open and honest counseling will go a long way to convincing a jury that the employer is in the right.

Chris McKinney

Kim Bechtel

I agree with the above comment, I can't understand why a company would put something negative on an employee's file and not share that information with the employee. Unless an employer is building a criminal case or is investigating an employee (both of which should be privileged) any other information not shared with the employee is not likely useful in supporting employment action such as termination. I like the approach used on this site, very accessible for a lawyer

Jay Shepherd

Thanks for your comment, Chris. I mainly agree with you, except for one thing. I do believe that there are some things that are too minor to warrant meeting with the employee. But under Massachusetts law, even those trivial things must go into the personnel file. And under the new rule, the employee must now be told. That's a situation where transparency leads to unneeded employee angst. Which is bad.

Thanks for sharing!

— Jay

Jay Shepherd

Thanks for your kind words, Kim. I hear what you're saying about transparency. See my reply to Chris's comment above.

Thanks again!

— Jay


What I'd like to know is if an employee is terminated and feels it was a deliberate act but hard to prove does asking for your personell file and finding nothing detrimental in it give you a reason to obtain a lawyer for some sort of retribution?

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