Help Wanted: False file could be illegal

DEAR CARRIE: I work for a major airline that has just imposed a new work rule. If you are injured on the job, the airline writes in your permanent record that you were working in an unsafe manner. I find this hard to believe because most injuries are the result of an accident. I don't know anybody who gets injured on purpose. So my first question is: Is the airline legally able to put this type of entry into an employee's permanent file? My second question is: Do you know of any government guidelines for working outside when lightning is present? This airline sets a five-mile radius before it will close the field for workers' safety. I have heard weathermen say if you can see lightning, you have a chance of being struck by it. -- Truth of Matter?

DEAR TRUTH: Your first question touches upon an interesting topic: personnel files, which are largely unregulated by state and federal laws, including the federal Railway Labor Act that governs airlines, says Carmelo Grimaldi, a partner at Meltzer, Lippe, Goldstein & Breitstone in Mineola.

Despite that largely unregulated area, companies could still wind up in a legal thicket if they put inaccurate information in employees' personnel files.

"An employer charged with discrimination may be found liable if it is shown the reasons behind the employee's discipline and/or termination are false -- even if direct evidence of discrimination is absent," Grimaldi said. "Indeed, a false document in an employee's file may be deemed evidence of pretext, which would assist an employee in a discrimination claim."

And the placement of false workplace accident data in a personnel file is also "problematic" under the federal Occupational Safety and Health Act, he said. That statute requires employers to maintain logs and summaries of occupational injuries and illnesses, including the causes of the workplace incidents.

"Any person who knowingly makes a false statement on such required OSHA records may be punished by a fine or imprisonment or both," Grimaldi said. "An employer who prepares accurate OSHA forms but places fraudulent workplace accident documents in a personnel file runs the risk of being challenged by the employee in litigation. . . . Such personnel documents will be contradicted by the employer's own OSHA records."

In some states, such as Massachusetts, employees by law may inspect, copy and even submit written rebuttals in response to information in their personnel file, and they can sue over inaccuracies.

"The Massachusetts law also allows employees to sue their employer to expunge information which the employer knew or should have known to be false from the employee's personnel record," he said.

New York has no such statute, however.

The truth is always an employer's best weapon, especially for accident prevention.

"If an employer legitimately believes its employee acted carelessly resulting in a workplace injury, the best course of action is to properly document the infraction and address the situation with the employee and other staff, (e.g., through workplace training)," Grimaldi said.

Regarding your safety question, the U.S. Occupational Safety and Health Administration, which administers health and safety regulations in workplaces, tells me that while it doesn't have any specific regulations for lightning, employers are responsible for keeping employees safe. And being ordered to work outside while a lightning storm is approaching may not meet the definition of safe.

For more information on what constitutes unsafe working conditions, call OSHA at 516-334-3344, 718-279-9060 or 212-620-3200.