Employment Law Blog

The stigma of filing bankruptcy has stopped many debtors who rightfully and propably necessarily need to file bankruptcy. The truth of the matter is that filing bankruptcy is a right granted to all Americans by Congress and as such, is a protected right. As a protected right, it is illegal to discriminate against debtors as employees pursuant to both Massachusetts law, MGL 151B, and Federal Law (Civil Rights Act and Bankruptcy Code). More specifically, 11 U.S.C.A § 525(b) provides, “No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt, solely because such debtor or bankrupt”.

There has been several cases directly on-point with the forgoing. In one case, a Police department rule rendering a city policeman subject to dismissal for the filing of a petition in bankruptcy was unconstitutional under U.S.C.A.Const. Art. 6, cl. 2, since the rule, while intended to insure a reliable and respectable police force, had the effect of prohibiting a policeman burdened with staggering debts from obtaining “a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt”, an effect in direct contravention of the stated purpose of this title. Rutledge v. City of Shreveport, W.D.La.1975, 387 F.Supp. 1277.

Chapter 13 debtor, a former chief appraiser for a county tax appraisal district, was fired from her job in violation of the Bankruptcy Code’s antidiscrimination provision where it was apparent from the totality of the circumstances that appraisal district’s board of directors determined that debtor would be discharged because they were embarrassed that she had filed bankruptcy and that it had become public knowledge. In re McKibben, Bkrtcy.E.D.Tex.1999, 233 B.R. 378.

Pursuant to Federal and state law, it is also a violation of law to either refuse or fail to promote or hire an employee based upon their status as a bankruptcy filer. In one case, an employer’s failure to offer participation to debtor in commission advancement program after debtor had filed for bankruptcy, when all other account specialists were offered participation, violated antidiscrimination provision of Bankruptcy Code, where determining reason for failing to offer participation to debtor was fact of his bankruptcy. In re Vaughter, bkrtcy.W.D.Tex.1989, 109 B.R. 229.

Laws protecting debtors from employment discrimination, more specifically, failure to hire, promote or termination after filing bankruptcy, have been deemed illegal discrimination pursuant to both Federal and state law.

No employer is allowed to terminate an employee or discriminate against said employee solely because they are bankrupt or a debtor. This includes an individual who is or was a debtor under the Bankruptcy Code, a debtor or bankrupt individual under the Bankruptcy Act, or one associated with such debtor or bankrupt individuals. 11 U.S.C.A. § 525(b)(1). This also includes an employee who is in the middle of a bankruptcy proceeding but it has yet to commence. 11 U.S.C.A. § 525(b)(2).An employee who has filed for bankruptcy can be discharged if their employer can show a real legitimate reason for their termination. Laracuente v. Chase Manhattan Bank, 891 F.2d 17 (1st Cir. 1989). This filing of bankruptcy must be the sole reason for the employer’s discrimination in order for the employee to recover. 11 U.S.C.A. § 525(b).

There is no clearly established public policy requiring employers to refrain from demanding that their adult employees work long hours, nor is any public policy directly served by employee’s refusal to work long hours. Upton v. JWP Businessland, 425 Mass. 756, 682 N.E.2d 1357 (1997In DeRose v. Putnam Management Co., Inc., 398 Mass. 205, 496 N.E.2d 428 (1986), $25 million dollars in securities went missing and the FBI investigated. When a former employee eventually went on trial for the theft, the management ordered the Plaintiff to lie under oath. “You are going to be testifying, you better implicate him [McGrath] because you know he is guilty.” The plaintiff responded that he “didn’t know any such thing.” Nothing further was said. In his testimony, the plaintiff did not implicate.

Plaintiff was fired because he did not implicate a former employee at a criminal trail. The “seminal” case in this area is Petermann v. International Bhd. of Teamsters, Local 396, 174 Cal.App.2d 184, 188-189, 344 P.2d 25 (1959) where an employee was fired for not testifying falsely. The Massachusetts SJC stated, “We too conclude that, even in cases where the employer does not gain a financial advantage, an at-will employee has a cause of action for wrongful discharge if the discharge is contrary to public policy.”

Redress is available for at-will employees who are terminated for asserting a legally guaranteed right (e.g., filing workers’ compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury). Falcon v. Leger, 816 N.E.2d 1010, (2004)

Public policy exception to at-will employment rule has been made available to employees discharged for performing important public deeds. Mistishen v. Falcone Piano Co., Inc., 630 N.E.2d 294 (1994)

Jurisdictions outside of Massachusetts have also held it illegal to terminate an employee for failure to comply with managements directive to violate a public policy.  More specifically, in Larkey, the court affirmed a jury verdict for the plaintiff, who claimed that, while he was employed as a truck driver, his employer wrongfully discharged him in retaliation for his refusal to violate Illinois law by driving his truck through the state with a load greater than the statutory maximum 73,280–pound weight limit. Remington Freight Lines, Inc. v. Larkey, 644 N.E.2d 93, Ind.App. 2 Dist. (1994). 

The court in Winkelman v. Beloit Memorial Hosp., 168 Wis. 2d 12, 483 N.W.2d 211 (1992), held that evidence supported a finding that the discharge of a nurse who refused to work on a ward for which she was not qualified violated the public policy that the sick be cared for only by those qualified to do so. 

In another case on point,  an employee refused to violate the Federal Clean Air Act by dispensing leaded gasoline into an automobile equipped to receive only unleaded gasoline. Phipps v. Clark Oil & Refining Corp., 408 N.W.2d 569 (1987)

A central issue that many Plaintiff’s face in bringing claims for sexual harassment in the workplace is whether they were actually offended. More specifically, when a Plaintiff has engaged in conduct at work that may be construed as sexual in nature, whether it be sending sexually explicit emails, viewing pornography at work on their workstation or other similar conduct. The question that must be asked is whether such a person can assert a claim for sexual harassment and survive the Defendant’s challenge that such a person can not claim any sexual comments or activity is unwelcome.The complaining party must actually be offended by the conduct at issue. Ramsdell v Western Massachusetts Bus Lines, Inc., 415 Mass. 673, 677-678 (1993).To determine whether a claim of hostile environment harassment is made out there is an objective and subjective test. To be actionable the harassing conduct must be work-related. Muzzy, 434 Mass at 411 The conduct complained of must be sufficiently severe or pervasive to interfere unreasonably with the work performance of a reasonable person in the plaintiff’s situation. Winters v ADAP, Inc., 76 F.Supp.2d 89, 95 (D.Mass.1999)

In order to successfully demonstrate sexual harassment, a victim has the burden of proof. Massachusetts law recognizes two distinct categories of illegal conduct: quid pro quo harassment: where requests for sexual favors or acquiescence in sexual advances are made a condition of employment or as a basis of employment decisions; and hostile harassment, where an abusive work environment is created by verbal or physical conduct of a sexual nature which “unreasonably interferes with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.

To determine whether conduct is “unwelcome,” it is permissible to examine the victim’s actions. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 (1986). At the trial, the parties presented conflicting testimony about the existence of a sexual relationship between the Plaintiff and the supervisor. While the question whether particular conduct was indeed unwelcome presented difficult problems of proof and turned largely on credibility determinations committed to the trier of fact, the District Court in this case erroneously focused on the “voluntariness” of respondent’s participation in the claimed sexual episodes. The correct inquiry was whether the Plaintiff by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 (1986).

The court in Henson v. Dundee, determined whether the conduct was unwelcomed by “the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.” Henson v. City of Dundee, 682 F.2d 897 (1982).

The mere fact that a female employee participates in some workplace conduct that is sexual does not, by itself, prove that the conduct is welcome and that she does not perceive her environment to be hostile, as would preclude a sexual harassment claim under Title VII or Massachusetts law; nor does it suggest that the employee enjoyed or appeared to enjoy the campaign of harassment against her. Horney v. Westfield Gage Co., D.Mass.2002, 211 F.Supp.2d 291, affirmed in part, reversed in part 77 Fed.Appx. 24, 2003 WL 22326558.

Evidence that sexually-charged and abusive language in female employee’s workplace, even if not gender-related, was used regularly by men toward women, together with evidence of sexual calendars, pictures, jokes, and posters in the workplace, presented a question for the jury regarding whether such conduct was gender-based, as required to establish sexual harassment under Title VII and Massachusetts law. Horney v. Westfield Gage Co.

In determining whether sexually harassing conduct violates Massachusetts law, courts may look to interpretations of Title VII, but are not bound by interpretations of Title VII in construing Massachusetts law prohibiting work environments pervaded by harassment or abuse. Mullenix v. Forsyth Dental Infirmary for Children, D.Mass.1996, 965 F.Supp. 120. To establish sexual harassment claim under Massachusetts law, there must be showing that work environment is subjectively offending to plaintiff; plaintiff must show that employer’s conduct was intentionally or in effect hostile, intimidating, or humiliating to plaintiff in way which affected her performance. Mullenix v. Forsyth Dental Infirmary for Children.

In determining whether the work environment is hostile, significant out-of-work harassment may be considered. Salvi v. Suffolk County Sheriff’s Dept. 855 N.E.2d 777, 67 Mass.App.Ct. 596(2006).

The press as well as employment lawyers have significantly educated the American public as to the problem of sexual harassment in the workplace. Many adults were subject to sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature which had the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment. However, over the past few years, the general public has been made aware of not only how unprofessional and unethical such practices are, but more importantly how such conduct can lead to significant litigation costs and massive judgments for emotional distress.

Employers and supervisors in Massachusetts may not sexually harass their employees by way of either direct or indirect innuendo. Where a supervisor’s conduct has the purpose and effect of unreasonably interfering with employee’s work performance by creating intimidating, hostile, humiliating, and sexually offensive work environment, Massachusetts courts have classified such conduct as sexual harassment. Cardona v. Conn. Car Rental, 20 Mass. L. Rep. 82 (2005). More specifically, under Massachusetts law, it is an unlawful practice for an employer, as defined in Mass. Gen. Laws ch. 151B, § 1(5), to sexually harass any employee. Moreover, Sexual harassment is not limited to any verbal conduct of a sexual nature which is found to interfere unreasonably with an employee’s work performance through the creation of a humiliating or sexually offensive work environment can be sexual harassment under Mass. Gen. Laws ch. 151B. Melnychenko v. 84 Lumber Co., 424 Mass. 285 (1997).

Under Massachusetts law, an employee has the right to be free from unreasonable, substantial, or serious interference with privacy, as stated in G. L. c. 214, § 1B, ID. Where a supervisor’s misconduct occurs at the defendant’s place of business while he or she holds a supervisory position, the sexually harassing conduct falls within the scope of employment for purposes of G. L. c. 214, § 1B. College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 165-167, 508 N.E.2d 587 (1987).

As a result of the forgoing, many companies have since instituted sexual harassment policies, which they require all employees to read prior to commencing their employment. In addition, many companies have training programs for their adult workforce. The problem is that many companies employee part time teenage employees, who neither understand the ramifications of sexual harassment nor take part in any of the training programs, read the manuals or are spoken to regarding sexual harassment by their supervisors, who in many cases are also teenagers. This is particularly a problem for businesses one would commonly find in a shopping mall, such as fast food, retail and amusement park companies.

During 2007, according to the Equal Employment Opportunity Commission (EEOC), referring to 16 – 19 year olds, “charges filed and anecdotal evidence indicates that discrimination is a problem for teenagers.” According to a professor of social work, Susan Fineran, 35% of high school students surveyed claimed they were subject to sexual harassment at work, of which over 60% were teenage girls. According to a report in the magazine, Nation’s Restaurant News, over the past decade, restaurant’s alone have paid out in excess of $7.3 million dollars to battle sexual harassment lawsuit regarding teenagers.

What is the gist of all of this? If corporate America wants to avoid costly prolonged litigation, must do a much better job educating teenage part time employees, in the same way they have done so with their full time adult workforce.

Attorney Michael Goldstein drafted the forgoing article for the Law Office of Goldstein and Clegg, a Massachusetts sexual harassment attorney. Some of the statistics form the forgoing article was derived from April 2008, ABA Journal.

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection. 29 U.S.C.A. §157. As we read the section it means that an employer may not require an applicant for work, as a condition to accepting him for employment, to join or to resign from a union, nor insert in the contract of employment any other discriminatory term that encourages or discourages membership in a labor organization, excepting only that, if the facts stated in the proviso exist, the employer may require membership in the labor organization which has been legally chosen to represent his employees.

Unions and employers are not allowed to require employee who objects to union membership to articulate his or her ideological objection and then to determine whether employee’s objection is “ideological” or “political” enough to be constitutionally protected. Conley v. Massachusetts Bay Transp. Authority, 539 N.E.2d 1024 (1989).

The Court held that the covenant of good faith and fair dealing is violated when an employer terminates an at-will employee without good cause and deprives the employee of a clearly identifiable future compensation reflective of the employee’s past services. Fortune v. Nat’l Cash Register Co., 373 Mass. 96, 104-05 (1977).Whether particular benefits relate to past or future services is a matter of law to be decided by the court where the contract terms agreed to by the parties are undisputed. Sargent v. Tenaska, Inc., 108 F.3d 5, 8 (1997). A cause of action might exist for an employee at will who was terminated in bad faith one month before his partial interest in a five year project was scheduled to vest. Id. Where benefits such as shares of stock are subject to a vesting schedule over time and vest only if the employee continues to be employed, such benefits are contingent on the employee providing future services for the employer and thus are generally not compensation for past services. Harrison v. NetCentric Corp., 433 Mass. at 473-474 (2001).

The Supreme Judicial Court has recognized an exception to the general rule allowing for termination of an at-will employee with or without cause, which states that an employer may not terminate an at-will employee “if the termination violates a clearly established public policy.” King v. Driscoll, 418 Mass. 576, 582 (1994); Wright v. Shriner’s Hosp. for Crippled Children, 412 Mass. 469, 472 (1992). The determination of whether a “public policy” is implicated in the discharge of an employee is a question of law for the court. “It is not for the jury to define the public policy. The judge must determine whether, on the evidence, there is a basis for finding that a well-defined, important public policy has been violated.” Mello v. Stop & Shop. Co., 402 Mass. 555, 561(1988).

The Superior Court judge correctly concluded that Beriont is properly considered an at-will employee since he failed to produce an employment agreement with a definite period of employment. Jackson v. Action for Boston Community Dev., Inc. 403 Mass. 8, 9 (1988). As a general principle, an employer can terminate the employment of an at-will employee at any time for any reason, or for no reason at all. Upton v. JWP Businessland, 425 Mass. 756, 757 (1997). However, an at-will employee can succeed in imposing liability on an employer for terminating his employment in violation of a clearly established public policy. IdThe general rule is that an at-will employee may be terminated at any time for any reason or for no reason at all. Folmsbee v. Tech Tool Grinding & Supply, Inc., 417 Mass. 388, 394(1994). Liability may be imposed on an employer, however, if an at-will employee is terminated for a reason that violates a clearly established public policy. King v. Driscoll, 418 Mass. 576 (1994). The public policy exception makes redress available to employees who are terminated for asserting a legal right (e.g., filing a workers’ compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to disobey the law (e.g., refusing to commit perjury). Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-150, 533 (1989).

Employment can be terminated at any time for any reason or for no reason at all. Gram v. Liberty Mut. Ins. Co., 384 Mass. 659 (1981). Relief may, however, be had in some circumstances where an at-will employee’s termination is contrary to public policy. Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145 (1989). Redress is available for employees who are terminated for asserting a legally guaranteed right (e.g., filing workers’ compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury).” Id. Another public policy basis for imposing liability is where there has been retaliation for the performance of an important public deed. Flesner v. Technical Communications Corp., 410 Mass. 805 (1991).

Pursuant to Massachusetts’s employment law, an employer can be liable under the discrimination statute even if they don’t necessarily discriminate against a protected class of individuals. Rather, an employer can discriminate against a person who is simply attempting to conduct some activity protected by the law. If an adverse action is taken as a result of an employee conducing a protected activity the law recognizes this a form of discrimination call retaliation.Retaliation, a plaintiff must show that she engaged in legally protected conduct; she suffered an adverse employment action; and a causal connection existed between the protected conduct and the adverse action. To succeed on a retaliation claim, a plaintiff must prove that she reasonably and in good faith believed that his employer engaged in wrongful discrimination, that she acted reasonably in response to this belief, and that the employer’s desire to retaliate against her was a determinative factor in the decision to take an adverse employment action.

For reasons of public policy, an at-will employee may maintain a cause of action and find redress where the termination results from the employee’s assertion of some legally guaranteed right, or for refusing to engage in illegal or harmful conduct. Parker v. Town of North Brookfield, 68 Mass. App. Ct. 235 (2007). Public Policy was violated where employee was discharged in retaliation for good-faith internal complaint about practices violating UL standards bearing directly on public safety. Falcon v. Leger, 62 Mass. App. Ct. 352, 365 (2004).

Redress is available for employees who are terminated for asserting a legally guaranteed right for refusing to do that which the law forbids (e.g., committing perjury). Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 149, 150 (1989). An employee’s good faith internal complaint of employer’s violation of criminal law need not have been reported to public authorities in order to succeed under public policy exception. Shea v. Emmanuel College, 425 Mass. 763 (1997). An at-will employee who “blew the whistle” within his company on wrongdoing is entitled to protection even though before discharge he did not complain to public authorities. Mello v. Stop & Shop Cos., 402 Mass. 560 (1988). An employee could be shielded from the risk of discharge if he or she reasonably, but perhaps erroneously, reports that an employer is violating State and municipal laws and ordinances concerning public safety. Id.