Written Requests from Former Employees Should Not be Ignored

By: Rudman Winchell Attorney Matthew Cobb

 

Ending an employment relationship with an employee is never a risk-free endeavor. Usually the decision is not mutual and can leave the employee feeling disgruntled. In some instances, the employee may even inform the employer when the separation occurs that they intend to retain a lawyer to challenge the legality of the separation. Often times though it is less clear that a terminated employee will seek legal recourse against their employer. In Maine, however, two statutes provide former employees with procedures that when utilized may indicate her or she is contemplating legal action because they allow former employees to gather substantive information about the employer’s decision to end the employment relationship. Yet the law requires an employer to respond to these two requests or face civil penalties.

The first is a former employee’s request for a copy of their personnel file. Maine law at 26 M.R.S. § 631 requires that an employer “shall, upon written request from an employee or former employee, provide the employee, former employee or duly authorized representative with an opportunity to review and copy the employee’s personnel file.” The statute provides that an employer receiving such a request must grant the former employee access to their personnel file within 10 days. Importantly, the Maine Supreme Judicial Court has interpreted section 631 as entitling a former employee to any “records the employer has in the employer’s possession” touching on that individual’s employment; the former employee’s right is not limited to the materials physically present in the personnel file. See Harding v. Wal-Mart Stores, Inc., 2001 ME 13. A request for a personnel file, especially one from an attorney on behalf of a former employee, may be the first step in gathering evidence as to why the employment relationship ended. A plaintiff’s attorney may also be looking for the absence of any documented discipline in the file because this will allow him or her to argue that the employee was a good employee and should not have been terminated, and/or there is no evidence to support the employer’s termination decision. Even so, employers should not ignore these requests. The statute entitles the former employee to a copy of their personnel file as a matter of right, and an employer can be fined up to $500.00 for failing to respond to such a request.

For similar reasons, employers should not ignore a former employee’s request for a written statement from the employer as to the reason they were terminated from employment. Maine law at 26 M.R.S. § 630 provides that an employer “shall, upon written request of the affected employee, give that employee the written reasons for the termination of that person’s employment.” The statute gives an employer 15 days in which to respond to this request, and also subjects an employer to a fine of up to $500.00 for failing to respond. It is not unusual for such a request to accompany a request for a personnel file. As mentioned above, a former employee or that person’s attorney may want see whether the stated reason for the termination pursuant to section 630 is supported by evidence in the personnel file, or whether the reason for the termination is weak on its face. Responding to this request also “locks-in” the employer’s reason(s) for terminating the employee, and limits the employer’s ability to point to other factors later on they may also have justified the termination. Thus, employers should proceed with great care in providing a response to such a request, and should strongly consider seeking legal advice before doing so. Indeed, in March 2013, the Maine Supreme Judicial Court overturned the dismissal of an employment discrimination lawsuit and allowed the case to proceed to trial where the evidence called the employer’s stated reason for terminating the employee into question. See Trott v. H.D. Goodall Hospital, 2013 ME 33. Employers should not ignore either of the requests outlined above. Although receipt of either request is not a guarantee that legal action is forthcoming, it certainly raises that possibility. Even so, employers should be mindful that the law entitles former employees to a response, and failing to respond may subject an employer to civil penalties.

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