Michigan's Bullard-Plawecki Act: Personnel Records, Excluded Files and Disclosure Notice

The Same Definition, a Different Frame

Michigan enacted its personnel records statute as 1978 PA 397, effective January 1, 1979. Section 1 gives its short title as the "Bullard-Plawecki employee right to know act" and the Legislature's index lists its popular name as Right-to-Know. Readers who know the Massachusetts statute, G.L. c. 149, s. 52C, will recognize the core definition almost word for word. Under MCL 423.501(2)(c), a personnel record "means 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," including records held by a contractor that keeps or supplies personnel records for the employer.

Around that shared definition, the two statutes are built differently. Massachusetts has no size threshold for the access right and adds a list of documents that employers of twenty or more must keep in the file. Michigan has no mandatory contents list, sets a floor of four employees for the whole Act, and spends most of its definition on what a personnel record does not include. The Michigan definition of employer also names public bodies expressly: "the state, or an agency or a political subdivision of the state," along with individuals, corporations, partnerships, labor organizations and unincorporated associations. Like Massachusetts, it defines an employee as "a person currently employed or formerly employed by an employer."

Eight Exclusions From the Personnel Record

MCL 423.501(2)(c) lists eight categories that a personnel record "shall not include":

1. Employee references supplied to an employer if the identity of the person making the reference would be disclosed
2. Materials relating to the employer's staff planning with respect to more than one employee, including salary increases, management bonus plans, promotions and job assignments
3. Medical reports and records made or obtained by the employer, if they are available to the employee from the doctor or medical facility involved
4. Personal information about someone else whose disclosure would be a clearly unwarranted invasion of that person's privacy
5. Information kept separately that relates to an investigation under section 9
6. Records limited to grievance investigations that are kept separately and not used for the purposes in the definition
7. Education records of a student under the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g, maintained by an educational institution
8. Records kept by an executive, administrative or professional employee in the sole possession of the maker and not accessible or shared with others; such a record may be entered into the personnel record only within 6 months of the occurrence or of the date the fact becomes known

Only the fourth has a direct equivalent in section 52C. Michigan courts have applied several of the others.

In Muskovitz v. Lubbers, 182 Mich. App. 489 (1990), a Grand Valley State University professor sought confidential peer evaluations and a dean's letter to the provost after a two percent merit raise. The Court of Appeals held the dean's letter, which set out recommended increases for every member of the department, and the department chair ballots were exempt as staff planning materials. It held the peer evaluations exempt as references only "to the extent that the form of disclosure of such evaluations would also reveal 'the identity of the person making the reference,'" and upheld the trial court's order releasing their substance in a reordered, unsigned typed form.

In Wright v. Kellogg Co., 289 Mich. App. 63 (2010), a retired employee who had grieved a 34-day suspension sued for management's notes from the grievance meetings. The court held that a five-step grievance process was a systematic or official inquiry and therefore a "grievance investigation," and that notes from the grievance investigation of a disciplinary action fall within the exclusion in subparagraph (vi). It reasoned that reading the exclusion otherwise would make it "virtually meaningless."

Review, Copies and the Consequence of Leaving Records Out

Section 3 requires an employer, "upon written request which describes the personnel record," to provide an opportunity to review it "periodically" at reasonable intervals, "generally not more than 2 times in a calendar year or as otherwise provided by law or a collective bargaining agreement." The review takes place at a location reasonably near the place of employment during normal office hours. If that would require the employee to take time off from work with the same employer, the employer must provide some other reasonable time.

Michigan sets no deadline for the review. Massachusetts requires the review within five business days of a written request and a copy within five business days. Under section 4, an employee may obtain a copy "after the review," and the employer may charge a fee "limited to the actual incremental cost of duplicating the information." An employee who shows an inability to review the record at the employing unit can request in writing that the copy be mailed.

Section 2 has no Massachusetts counterpart. Personnel record information that "was not included in the personnel record but should have been" may not be used by the employer in a judicial or quasi-judicial proceeding. A judge or hearing officer may allow it if the omission was not intentional and the employee agrees or has had a reasonable time to review it. Material that should have been included "shall be used at the request of the employee." The Act therefore attaches an evidentiary consequence to an incomplete file.

Disputing Information in the File

Section 5 follows the familiar pattern of agreement first, then a statement. If the employer and employee do not agree to remove or correct disputed information, the employee may submit a written statement explaining their position. Michigan caps its length: it "shall not exceed 5 sheets of 8-1/2-inch by 11-inch paper." The statement must be included when the information is divulged to a third party, for as long as the original information remains in the file.

The false information clause reads differently from section 52C. In Massachusetts the remedy runs against an employer that placed information it "knew or should have known to be false." Michigan's clause is mutual and requires knowledge: "If either the employer or employee knowingly places in the personnel record information which is false, then the employer or employee, whichever is appropriate, shall have remedy through legal action to have that information expunged."

The Limit on Records of Non-Employment Activities

Section 8 moves beyond access into collection. An employer "shall not gather or keep a record of an employee's associations, political activities, publications, or communications of nonemployment activities," except where the employee submits the information in writing or authorizes its gathering or keeping in writing. The prohibition does not apply to activities that occur on the employer's premises or during working hours "that interfere with the performance of the employee's duties or duties of other employees." Any record kept under the section becomes part of the personnel record, and with it subject to review.

Section 9 governs investigation files. An employer with reasonable cause to believe an employee is engaged in criminal activity that might cause loss or damage to its property or disrupt its business may keep a separate investigation file. On completion of the investigation or after two years, whichever comes first, the employee must be notified that an investigation was or is being conducted. If no disciplinary action follows, the file and all copies must be destroyed. A criminal justice agency must instead keep a separate confidential file, notify the employee if no discipline results, and note the final disposition. As amended by 2018 PA 521, the section also allows release of that file to a prospective employing law enforcement agency as part of a separation-of-service record, and requires release to the Michigan Commission on Law Enforcement Standards on its request.

Notice Before Disclosing Disciplinary Records

Massachusetts requires notice within ten days of placing negative information in the file. Michigan's notice duty is triggered at the other end, when disciplinary material leaves the organization. Under section 6, an employer or former employer "shall not divulge a disciplinary report, letter of reprimand, or other disciplinary action to a third party, to a party who is not a part of the employer's organization, or to a party who is not a part of a labor organization representing the employee, without written notice." The notice goes by first-class mail to the employee's last known address, mailed on or before the day of disclosure. It is not required where the employee waived it in a signed employment application with another employer, where disclosure is ordered in a legal action or arbitration, or where a government agency requests the information because of the employee's own claim or complaint.

In Loftis v. G T Products, Inc., 167 Mich. App. 787 (1988), a fired machine operator argued that sharing his write-ups with a committee of coworkers violated section 6. The Court of Appeals agreed with the trial court that the employee committee, established in the employee handbook and used in the handbook's disciplinary procedure, was part of the employer's organization, so no notice was required.

Section 7 adds a review duty before any release to a third party: the employer must "delete disciplinary reports, letters of reprimand, or other records of disciplinary action that are more than 4 years old." The deletion rule does not apply to releases ordered in a legal action or arbitration, to separation-of-service records under the law enforcement officer separation of service record act, or to requests by the Michigan Commission on Law Enforcement Standards, a training academy or a law enforcement agency checking licensing compliance. The Legislature's history note shows section 7 was last amended by 2018 PA 521, effective March 28, 2019.

Remedies and Enforcement

Here the two states diverge most sharply. Section 52C is enforced by the Massachusetts Attorney General with a $500 to $2,500 fine, and the employee's own remedy was recognized by a court in Kessler v. Cambridge Health Alliance. Michigan writes the employee's action into the statute. Under section 11, if an employer violates the Act, "an employee may commence an action in the circuit court to compel compliance." Jurisdiction lies in the circuit court for the county where the complainant resides, where the complainant is employed, or where the record is maintained, and failure to comply with the order may be punished as contempt.

The court "shall award" a prevailing employee:

• For a violation, actual damages plus costs
• For a wilful and knowing violation, $200 plus costs, reasonable attorney's fees and actual damages

No state agency is assigned enforcement in the text. Section 10 provides that the Act shall not be construed to diminish a right of access to records under the Freedom of Information Act, 1976 PA 442, or otherwise provided by law, so a public employee's file can be reachable through both routes.

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