New Form of Retaliation Claim Recognized by Massachusetts High Court 

From JDSupra, James Nicholas discusses a recent case in which the Suipreme Judicial Court said that a termination violated public policy when an employee was terminated allegedly because the employee filed a rebuttal to a performance improvement plan. James writes:

For years, most observers believed that the Massachusetts Personnel Records Statute (MPRS) – which requires Massachusetts employers with 20 or more employees to maintain a personnel record for each employee – imposed minimal burdens on employers and carried little weight from an enforcement perspective.  This belief stemmed primarily from the fact that the statute does not provide a private right of action for employees for alleged violations of the law’s core mandates.  A recent decision from the Massachusetts Supreme Judicial Court (the “SJC”) however, has shifted that paradigm and given employees a basis, albeit limited, to bring an action related to certain statutory violations.

In that case, Meehan v. Med. Info. Tech., Inc., the SJC was presented with the question of whether an employee had a viable cause of action for wrongful termination in violation of public policy where the employee was allegedly terminated for filing a rebuttal to negative information the employer placed in his personnel file.  According to the complaint, the plaintiff was placed on a performance improvement plan in 2018.  Shortly thereafter, the plaintiff submitted a lengthy rebuttal challenging the basis for the performance improvement plan, which was to be placed in his personnel file.  The plaintiff was terminated later the same day.

While the SJC noted the broad expanse of the at-will employment doctrine in Massachusetts – which generally allows employers to terminate at-will employees for any or no reason – the court’s decision ultimately turned on a well-recognized exception to the at-will rule where employment is terminated in violation of a well-defined public policy.  In this case, the SJC found that the former employee, in filing his rebuttal to the 2018 performance improvement plan, had exercised rights guaranteed to him under the MPRS, which affords an employee the ability to “submit a written statement explaining the employee’s position which shall … become a part of such employee’s personnel record.”  Against this backdrop, the SJC held that the plaintiff had sufficiently stated a claim for termination in violation of public policy where he alleged that he was terminated solely because he had availed himself of rights guaranteed to him under the MPRS.

Notwithstanding Meehan’s central holding, which adds teeth to the MPRS from a private enforcement perspective, the SJC noted that its decision does not mean that an employer is prohibited from terminating an employee just because the employee has at one time or another filed a rebuttal, explaining that “if an employee had an attendance problem, was disciplined for it, and filed a rebuttal, the rebuttal would not in any way shield the employee from being disciplined or fired for lack of attendance. If the absenteeism continued, the employee could be terminated from employment, regardless of the rebuttal.”

Nevertheless, Massachusetts employers must now examine whether employees have filed rebuttals to negative information placed in their personnel files when considering a termination event.  Accordingly, employers with workers in Massachusetts are encouraged to consult with Foley’s employment counsel to measure the risk and potential liability present under such circumstances.

Source: New Form of Retaliation Claim Recognized by Massachusetts High Court | Foley & Lardner LLP – JDSupra

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