Case Preparation FAQ

1. Massachusetts Personnel Record Statute 2. Taking Company Records 3. Discovery 4. Hearsay Exceptions 5. Witness Statements

1. How do I get my “personnel record” from a current or former employer in Massachusetts?

   Reviewing an employee’s personnel record is usually the first step in preparing an employment law case. Under M.G.L. c. 149, §52C, employers in Massachusetts who employ at least twenty employees must maintain a “personnel record” for each employee subject to certain exceptions. The statute broadly defines this term to include “all employee performance evaluations, including but not limited to, employee evaluation documents; written warnings of substandard performance; [and] any other documents relating to disciplinary action regarding the employee.” An employee who requests, in writing, his or her personnel record must be given access or a copy within five business days. In 2010, the legislature amended M.G.L. c. 149, §52C to require covered employers to notify an employee within ten days of any negative information placed in the employee’s personnel record. In particular, the statute states: “An employer shall 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.” Requesting your personnel record before filing suit is especially helpful in employment discrimination claims based on wrongful termination, where the reasons for termination will be the focus of the litigation.

2. Should I take company records with me that support my employment law claim?

   It depends. In 2016, the Supreme Judicial Court in Verdrager v. Mintz Levin articulated a seven-factor, totality of the circumstances test to determine whether engaging in “self-help” discovery constitutes a protected activity. As discussed here, no one factor of this test is dispositive and employees should consult with an employment law attorney before attempting self-help discovery. Without proper advice, taking company documents could potentially hurt the underlying employment discrimination claim and expose the employee to counterclaims for breach of fiduciary duty, breach of contract, and violations of the Computer Fraud and Abuse Act as well as the Stored Wire and Electronic Communications Act.

3. What is discovery?

   After a lawsuit is filed, both parties have the right to discovery, which is typically the most time consuming part of a case. This is the employee’s opportunity to gather evidence in the form of deposition testimony, documents, sworn interrogatories, and requests for admission in support of his or her discrimination claims. Likewise, the employer may use the same techniques to gather evidence in support of it’s defense. Under Massachusetts Rule of Civil Procedure (MRCP) 33, each party may ask the other to answer up to thirty written interrogatories or questions under the pains and penalties of perjury. Interrogatories generally provide helpful background information and may also set the stage for other discovery requests. As an example, an interrogatory may ask for the names of all individuals who were involved in the decision to terminate the employee. From there, pursuant to MRCP 30, the employee’s attorney may depose such individuals to better understand the employer’s defense. During a deposition, a stenographer is present to record all testimony given by the deponent. Another technique, known as requests for admission pursuant to MRCP 36, can also be used to narrow the scope of facts in dispute. Like interrogatories, these are written questions that the other side must answer under the pains and penalties of perjury, but that are phrased in a way that requires an answer of either “admit” or “deny.”

4. What is “hearsay” and how does it apply in employment discrimination cases?

   Hearsay is simply an out-of-court statement offered in evidence to prove the truth of the matter asserted. Hearsay is generally inadmissible because it is considered unreliable. The hearsay rule is often implicated with respect to employment discrimination claims. As an example, after years of excellent performance evaluations, Jane Doe is passed over for a promotion after announcing her pregnancy. In doing so, Jane’s supervisor informs her that, while she was the most qualified candidate for the job, the promotion involved greater responsibilities and more travel. As a result, the company assumed that she wasn’t interested due to the demands of being a mother. Under the hearsay rule, Jane’s performance evaluations and her supervisor’s statements would be considered hearsay and inadmissible at trial. However, many exceptions to the hearsay rule exist.

   In this particular example, pursuant to M.G.L. c. 233, §78 and under the Section 803 hearsay exceptions, Jane’s evaluations may be admissible as a “business record” where certain foundational elements are satisfied, including the requirement that the performance evaluations were created in the regular course of business. Also under Section 803, the supervisor’s justification for not promoting her may be admissible under the “state of mind” or “statement against interest” exceptions. Finally, the fact that the employer did not authorize the supervisor’s statement does not render it inadmissible. Specifically, under Section 801(d)(2)(D), the supervisor is clearly an agent or employee of the company and was acting within the scope of his employment. Notably, in Ruszcyk v. Secretary of Public Safety, the SJC departed from the common law rule and applied the principles of this exception. When it comes to the hearsay exclusion, knowing how to apply the exceptions is vital to effectively presenting an employment discrimination claim.

5. Can my attorney gather witness statements from former co-workers on my behalf?

   It depends. Massachusetts Rule of Professional Conduct 4.2, specifically Comment 4, dictates under what circumstances an attorney may contact a client’s former colleagues: “In the case of an organization, this Rule prohibits communications by a lawyer for another person or entity concerning the matter in representation only with those agents or employees who exercise managerial responsibility in the matter, who are alleged to have committed the wrongful acts at issue in the litigation, or who have authority on behalf of the organization to make decisions about the course of the litigation.” In Messing, Rudavsky & Weliky v. President and Fellows of Harvard College, the Supreme Judicial Court interpreted Rule 4.2 and made clear that managerial responsibility or supervisory authority alone does not preclude contact with a potential witness. Rather, communication is prohibited where the employee has authority “to make decisions about the course of the litigation, such as when to initiate suit, and when to settle a pending case.”