Judge Shannon Frison, sitting in the Middlesex County Superior Court in Massachusetts, recently issued a ruling that highlights for employers the importance of providing complete and timely responses to requests for employee personnel files. Judge Frison’s ruling arose in the context of an employer’s motion to dismiss or compel arbitration in accordance with the terms of an arbitration agreement that the employer had failed to produce in response to a request for the employee’s personnel file.
In denying the employer’s motion, the court noted that the employer had an electronically signed copy of the arbitration agreement that should have been maintained in the employee’s personnel record because it is a waiver and Massachusetts law defines a “personnel record” as including waivers. The court also noted that the employer should have produced the arbitration agreement to the employee in response to the employee’s personnel record request. Because the employer failed to produce or disclose the arbitration agreement in response to the request for the employee’s personnel file and did not seek to compel arbitration until 11 months into the litigation, the court concluded that the employer’s conduct acted as a waiver of arbitration.
Separately, the United States District Court for the District of Massachusetts has similarly refused to compel arbitration where, in addition to other facts and circumstances, the employer did not produce the mandatory arbitration provision. In that case, because the employer failed to produce the mandatory arbitration provision electronically signed by the employer with the employee’s personnel file in response to a personnel record request, the court concluded that the employer could not compel arbitration.
These cases illustrate the importance of timely seeking to compel arbitration and ensuring that employee personnel files include copies of any signed agreements between the parties including, but not limited to, any signed arbitration agreement(s) because failure to do so may act as a waiver.
Employers may also want to ensure that an employee is notified of the arbitration agreements in response to a demand letter or any threat of litigation and provide the arbitration agreements to any state or federal agency (including the Massachusetts Commission Against Discrimination) early to notify employees of the agreement if any dispute is removed to court.