BUSINESS LAW: Bullard-Plawecki Employee Right to Know Act – What you don’t know can hurt your business

If you are a typical employer, you probably maintain some type of file relating to your employees, commonly called a personnel file. However, you may not know that Michigan has a law, the Bullard-Plawecki Employee Right to Know Act, which establishes certain guidelines with respect to creation and maintenance of personnel records.

The purpose of the law is to 1. establish a procedure to permit employees to review their personnel record, 2. provide criteria for the review, 3. prescribe the information which may be contained in the personnel records, 4. to provide penalties for violations of the Act.

The law has been on the books since 1979, but it seems in the last couple of years there has been a dramatic rise in the number of requests made under this Act, as well as the number of lawsuits seeking penalties for violations or alleged violations of the Act.

For many employers, the Act is confusing and difficult to comply with, in large part because it uses the term “personnel file” as almost a term of art. As a result, if one of your employees requests their “personnel records” under the Bullard-Plawecki Right to Know Act and you produce what you normally keep in their personnel file, you could very easily violate the Act and not even know it.

The Act defines a personnel record as “a record kept by the employer that identifies the 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.”

This definition of “personnel record” can and usually is broader than the traditional “personnel file.” Employers must be careful to apply the statutory definition to any records they have regarding the employee, whether or not the record is actually contained in the traditional personnel file. They must then decide on a case-by-case (or record-by-record) basis whether the item is a “personnel record,” as defined by the Act.

The Act specifically excludes certain items from the definition of “personnel record,” such as: 1) employee references (if the identity of the author is disclosed); 2) staff planning information involving more than one employee, (i.e., on promotions, job assignments, compensation); 3) medical records/reports (if they are available to the employee from the medical facility); 4) grievance information; 5) information of a personal nature involving a person other than the employee; 6) information relating to a criminal investigation; 7) records kept solely by an executive, administrative or professional employee and not shared with others; 8) records of an educational institution directly related to a student; and 9) records of an employee’s associations, political activities, publications, communications without employee’s written authorization or submission. Once you eliminate these categories of records, you are left to cull through the remainder of your records, basically guessing what is a “personnel record” and what is not.

A personnel record may include:

· Applications, resumes or other information regarding the employee’s qualifications

· Information regarding the employee’s compensation

· Information regarding disciplinary action subject to applicable collective bargaining agreement

· Information regarding employee’s transfers, job assignments, promotions

· Typed and handwritten notes taken during employment interviews

· Oral employee references transcribed into written notes by an interviewer (if identity of the person making the reference is not disclosed)

· Employee’s written statement (no more than five pages long) in response to a document in the personnel file with which he/she disagrees

· Records of an employee’s associations, political activities, publications or communications (only if submitted or authorized by the employee to the employer in writing, or when such activities occur on the employer’s premises or during the employee’s work hours that interfere with the performance of that employee’s duties or duties of other employees)

· Records kept solely by an executive, administrative or professional employee (if entered into the file within six months after the date of the occurrence or the date the fact became known)

· Other information that complies with the definition of “record” and is not specifically excluded under the Act.

This article is not intended to be an all-inclusive guide to the Act; it would be impossible to compile such a list, since each company and employee’s circumstance is different.

It is simply intended to alert you to the existence of the Act, and to describe a few of the many documents that are potentially part of your employees’ personnel records.

Please consult your attorney for specific guidance.

Laura Dinon is an attorney with Plunkett & Cooney, practicing in Petoskey. She specializes in labor and employment law. BIZNEWS

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