Why Massachusetts Attorney General’s
Policy for Enforcement of Chapter 149 Needs Fixing
The Court
dismissed my suit against the Massachusetts Human Resources Division (MHRS) and
the Attorney General of Massachusetts (AG). The Court ruled that I could not
get my employee personnel record from the MHRD because of a limited right of
private action (the right of private action is the authorization of the
plaintiff to sue).
The Court
also dismissed my demand that the AG office produce their policy regarding Chapter
149, sec. 52C (Chap. 149,). However the
AG stated it policy regarding the Stature in in Pleadings. Based on the policy
found in the Pleading, is possible to analyze with some certainty the AG’s
methods for enforcement of the Stature
Curiously
the Court concluded that I had asked it to compel the AG to enforce the
statute. This was a misinterpretation of the complaint. The complaint demand
only from the AG that it provide a written copy of its policy regarding the
enforcement of Chapter 149.
The AG
policy on Chap. 149 based on its pleadings and other court documents is the
following.
1. There is no right to private action
and only the AG can enforce the statute.
The Court has ruled that a plaintiff
has the right of private action when it comes to the expungement or correction
of items in the employee’s personnel file. [1]
See images below
2. The AG policy is that the
Commonwealth of Massachusetts and its political subdivisions are not required
to provide employees’ their file per Chap. 149.
The Court did not rule on this issue.
3. The AG enforcement of Chapter 149 is
outside of the jurisdiction of the Courts.
The Court ruled it had no jurisdiction in the enforcement of Chap. 149 by
the AG.
The impact
of this ruling is that not one employee of the Commonwealth of its political
sub divisions can obtain their employee file, except at the pleasure of the
Commonwealth. The AG policy is Chap. 149 does apply to the Commonwealth of
Massachusetts.
Another
consequence of the AG policy is that no employee working for a private company
can compel through the courts his company to produce his personnel file.
There are
several ways to correct this arrogance of power by the AG. The first is to
request the legislature to add the right of private action expressly in Chap.
149.
The other
way to use the tiny opening given by the Court for a private action to
“expunge” or correct a personnel file. There is a logical necessity to the
correcting of a personnel file and that logical necessity is that the employee
requires a copy of his personnel file in order to correct it.
It is likely
that both paths will be pursued
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