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Massachusetts Court Ruling Highlights Importance of Employer Responses to Personnel File Requests in Motions to Compel Arbitration

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. 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.

Key Takeaways

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.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 295

About this Author

Danielle Vanderzanden, Ogletree Deakins Law Firm, Labor Law and Privacy Attorney

Ms. Vanderzanden is a Shareholder in the Boston office and Co-Chair of the firm’s Data Privacy practice group.  She specializes in the areas of privacy, restrictive covenant, wage and hour, discrimination and labor and employment litigation and counseling.  She devotes her practice to helping employers with employment-related disputes, conducting investigations and providing counsel to clients seeking to reduce their potential for liability to their employees and third parties.  She has personally conducted dozens of investigations, including investigations involving...

Melanie Cormier Litigation Attorney Boston Ogletree Deakins Nash Smoak & Stewart PC

Melanie joined the Boston office of Ogletree Deakins as an associate in 2021. She represents employers in all aspects of federal and state employment litigation, as well as before administrative agencies.

Before joining the firm, Melanie was an associate at a litigation boutique in Greensboro, North Carolina, practicing business and employment litigation. Melanie graduated cum laude Wake Forest University School of Law, earning the National Association of Women Lawyers (NAWL) Outstanding Student Award. While in law school, she served as an Articles Editor for the Wake...