Employment Law Blog

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.

There are many employees who fall into a protected class of individual.  For example, the Federal Civil Rights Act of 1964 and the Massachusetts Laws regarding discrimination, M.G.L. 151B, speak to cases of gender, race, national origin, handicap, religion and sexual harassment.  However, just because an employee is a member of one of these protected classes, not not make them more likely to sue subsequent to termination.  These employees do have more legal rights, but many other employees also have similar rights that speak to public policy retaliation and other facets of their lives which provide legal standing and increase the risk of a suit.

Recently the a blog posting at Gruntled Employees, posted a list of the 30 most likely employees to sue.  Below is a copy of that list:

1. are female
2. are pregnant
3. were recently pregnant
4. are on family or medical leave
5. are just back from family or medical leave
6. recently asked for family or medical leave
7. are older than others (and at least 40)
8. are a different race from most
9. are a different national origin from most
10. are a different religion from most
11. are a different ethnicity from most
12. have a disability
13. have a mental disability
14. are thought to have a disability
15. associate with someone with a disability
16. are alcoholic
17. are gay or lesbian
18. are transsexual
19. have ever complained about discrimination
20. were sexual-harassment victims
21. are veterans
22. didn’t get paid for all their time worked
23. didn’t receive all their overtime pay
24. are about to receive a bonus, commission, or option grant
25. ever complained about an illegal practice
26. have criminal records
27. have drug problems
28. are involved with union organizing
29. are related to, friendly with, or live near a lawyer
30. are fired with less retained dignity than they could have

I recently came across a very interesting blog post by Attorney Chris Attig. Below Please find the article which was originally posted on his website, http://www.attiglawfirm.com/blog.

The most important difference between Worker’s compensation and personal injury law is that worker’s compensation is a personal injury that occurs at the individuals workplace or in the scope of their employment and a worker’s compensation claim must be brought to the Department of Industrial Accidents (DIA) and therefore is subject to the DIA’s rules and regulations regarding a worker’s compensation claim. However, a personal injury matter can be filed in district or superior based upon the amount of damages sought by the individual.In the case of personal injury it is considered to be a negligent act. Under Massachusetts Tort Law Section 1.1a (personal injury) it states that a negligent defendant is liable to the plaintiff for reasonable pain and suffering caused by the defendant’s negligence. In order to evaluate the pain and suffering the plaintiff endured the following things are looked at; how badly the plaintiff was injured, the nature, extent, severity, permanency and the effect of the injuries. Past and future probable pain and suffering may be considered part of the plaintiff’s damages. Damages defined under Massachusetts Tort Law are; “The sum of money fixed upon must be such as fairly compensates the injured person for the loss of time, the physical pain and the mental suffering both that are undergone in the past and likely to occur in the future.” Some examples of sources of evidence regarding pain and suffering could be the following; the plaintiff’s testimony about the plain, expert evidence such as the plaintiff’s doctor, hospital records, nurses notes, test results, records of administration of medicines, and lastly the life expectancy of the plaintiff. When it comes to damages it is said that if the jury finds that the negligence on part of the defendant has aggravated a preexisting condition of the plaintiff then the difference at any given time between what the plaintiff’s condition would have been absent the accident and what the plaintiff’s condition is, or was or what it will be because of the accident will determine the extent of the defendant’s liability. (MA Tort Law Section 1.1a)

The following things are also considered when determining personal injury law; loss of earning capacity, loss of enjoyment of life, consortium damages, scarring and disfigurement and lastly medical expenses. Loss of earning capacity means that it is not limited to the amount of the plaintiff’s lost wages at the time of his/her injury it is the loss of reduction in ones ability to earn a living.

The loss of enjoyment of life is when the individual’s quality of life is assessed by the measurement of his/her status in the community, personal interests, hobbies and the participation in numerous noneconomic activities.

Consortium damages are when an individual is injured by another’s negligence, the injured persons spouse may collect damages from the person who committed the negligent act. The spouse has the right to recover for services, society, sexual relations and conjugal affections. Consortium damages are also when a person is injured by a negligent act of another parents have the right to collect damages from the negligent individual. The parents have the right to recover damages under loss of services, society, companionship, and care of their parent.

A plaintiff is allowed to recover damages from the negligent individual who scarring and disfigurement. Whether or not photographs of the scars or disfigurements of the plaintiff’s will be allowed into the court proceeding is an issue the trial judge will address.

Lastly a plaintiff may recover damages for medical expenses that were incurred in treating the injury of the plaintiff caused by the defendant’s negligence. It is not necessary that the plaintiff have paid the bills, all they must do is show that they were incurred.

When it comes to a worker’s compensation claim it differs greatly from personal injury. When an injury occurs at the workplace or during the scope of employment is when an individual may file a worker’s compensation claim. As stated above the biggest difference is that a worker’s compensation claim is not heard in a district or superior court it is heard by an administrative law judge at the Department of Industrial Accidents (DIA). MA General laws chapter 152 section 1(4) it defines an employee as “every person in the service of another under any contract of hire, expressed or implied, oral or written.” Worker’s compensation coverage is mandatory for all the employees in the private sector excluding the following; seasonal, casual or part-time domestic servants, in some circumstances professional athletes, real estate sales persons, door to door salespersons and lastly taxi drivers. In MA all employer’s are required to have worker’s compensation insurance so that when an employee is injured at the workplace or during work it helps to pay for medical treatment related to the injury and also it pays partial compensation for lost wages after five days of disability. In order to receive worker’s compensation benefits the injured individual is required to fill out paper work that can be found on the DIA’s website (www.mass.gov/dia).

Pursuant to Massachusetts law, the word retaliation is defined as; an employer taking and adverse action against an employee as a result of the employee conducting some form of protected activity. Retaliation is a separate claim from discrimination, it can be found in Massachusetts General Laws in chapter 151B. The word retaliation is not actually used in the law however the courts commonly use the word as shorthand for the word antidiscrimination statutes. The laws against retaliation allows for liability against individuals and not just employers.

Under Massachusetts Law 151B there are two different subsections that prohibit unlawful retaliation and they are §4(4) and §4(4A). §4(4) states; “for any person, employer labor organization, or employment agency to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under this chapter or because he has filed a complaint, testified, assisted in any proceeding under section five of MGL 151B §4(4).” MGL 151B §4(4A) states that; “for any person to coerce, intimidate, threaten or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter, or to coerce, intimidate, threaten or interfere with such other person for having aided or encouraged any other person in the exercise or enjoyment of any such right.”

Under Mass Practice Section 8.30 it states that in order to establish a case of retaliation, the plaintiff must show that he/she engaged in legally protected conduct and that he/she suffered an adverse employment action, and that a causal connection existed between the legally protected conduct and the adverse employment action. In order for one to succeed in a relation claim they must show the following;

1. The plaintiff must prove that he reasonably and in good faith believed that his employer engaged in wrongful discrimination.
2. That he acted reasonably in response to this belief
3. That the employer’s desire to retaliate against was his determinative factor in taking an adverse employment action.

In order for the plaintiff to prove the first prong of their retaliation case they must show that they engaged in an act protected under chapter 151B section 4(4), and those who have opposed any practice forbidden under MGL c. 151B and those who file complaints or assist in any proceedings before the MCAD (Massachusetts Commission Against Discrimination) these are known as the “opposition” and “participation” clauses.

The application of the opposition clause and can prove to be tricky because the employee must allege that the retaliatory conduct was due to the employee’s opposition to practices forbidden under MGL c. 151B.

The participation clause refers to MCAD proceedings and c.151B doesn’t cover participation in internal investigations of discrimination unless the participation amounts to the protected opposition, such as aiding, or encouraging another employee in the exercise of that employee’s rights.

In October 2007, the Federal court held that in the context of the Family and Medical Leave Act; direct notice from the employee to the employer is not always necessary. In the context of the Family and Medical Leave Act (FMLA), either an employee’s inability to communicate his illness to his employer or clear abnormalities in the employee’s behavior may constitute constructive notice of a serious health condition. It is enough under the FMLA if the employer knows of the employee’s need for leave; the employee need not mention the statute or demand its benefits. Stevenson v. Hyre Elec. Co., 505 F.3d 720 (2007).

The facts of the case were that on February 9, 2004, an employee had an extreme emotional and physical response to a stray dog entering her workspace. She left work soon after and for the most part stayed home for the next several days. The few times she tried to return to work, she felt unable to function and demonstrated erratic and emotional behavior. Approximately one month later, she received a letter informing her that she had been terminated effective February 25. In this case, the court found that it was possible that the employee herself was unaware that she was suffering from a serious medical condition until she went to the emergency room on February 11. Yet the employee did not give the employer any explicit notice of her need for leave within one or two working days of February 11. It was not until February 17 that she left a copy of her Emergency Room discharge orders with an agent at the employer’s office. The court found that her behavior was so bizarre that it amounted to constructive notice of the need for leave.

Once notice is provided to the employer, and such notice may be in the form of an extreme behavior change, it becomes the employer’s obligation to request such additional information from the employee’s doctor as may be necessary to confirm the employee’s entitlement to FMLA leave. To read another employment lawyer’s take on this case click here

It would appear from this new case, that the requirements for FMLA requests and any subsequent termination may lead to increased claims for handicap discrimination, whereby the employee’s conduct puts the employer on notice of a reasonable accomidation request.

If an employee voluntarily quits his or her job and is seeking to gain unemployment compensation from the Division of Unemployment Assistance (DUA), they have a burden of proof to the Division of Unemployment Assistance in order to demonstrate that their voluntary quitting wasn’t without good cause attributable to the employing unit or its agent.The burden of proof is on the employee and not the employer. Pursuant to Massachusetts General Laws c. 25 § (e)(1) the disqualifications for unemployment assistance. A person will not become disqualified from unemployment benefits if they voluntarily quit if they, can establish to the satisfaction of the commissioner that the reason that they left work due to sexual, racial or any other unreasonable harassment where the employer, its supervisory personnel or agents knew of such or should have known of such harassment.

Under Massachusetts General Laws, sexual harassment is defined as; sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when; submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions. Also if such advances or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance, and lastly, such advances, requests or conduct have the purpose of effect of creating intimidating, hostile, humiliating, or sexually offensive work environment.

A person will also not be disqualified for voluntarily quitting if they establish to the satisfaction of the commissioner that the reason for the individual’s leaving work was due to domestic violence including; the individual’s reasonable fear of future domestic violence at or on route to or from the individuals place of employment, the individuals need to relocate to another geographic area in order to avoid future domestic violence, the individuals need to address the physical, psychological and legal effects of domestic violence, the individuals need to leave employment as a condition of receiving services or shelter from an agency which provides support services or shelter to victims of domestic violence and lastly, any other respect in which domestic violence causes the individual to reasonably believe that termination of employment is necessary for the future safety of the individual or their family. M.G.L. c. 151 § 25. If an individual voluntarily quits their job unless they can prove to the commissioner that they quit because of harassment or due to a domestic violence situation, they are going to have a big burden of proof to show the commissioner to even be considered for unemployment benefits.

Employees have rights in the workplace when it comes to employer intrusion into their personal business and their privacy. In Section 652B of the Restatements (second) of Torts it provides information regarding intrusion. It states that “one, who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”Intrusion in a work place setting could include such things as; an inquiry into private facts, physical searches of persons or the premises, drug test and surveillance and monitoring of employee conduct. In all of these cases the balancing test is applied to determine whether or not the intrusion would be highly offensive to a reasonable person.

The courts of Massachusetts are interested in protecting employees from questioning about personal matters that are absolutely no business of the employer. However under some circumstances inquiries concerning non-workplace conduct are permissible if it can be shown that there is a legitimate purpose for the information. When it comes to the degree of intrusion into an employee’s rights, the nature of the employee’s job could potentially be significant. If there is an employee who is high level and is considered to be a confidential employee then the information they disclose should be much broader compared to someone who mows lawns or performs janitorial work.

When it comes to the issue of privacy in the workplace there are very fine lines as to what intrusion is and what should be expected. Normally employees expect to have privacy in regards to their office at work and such things as their desks, files, lockers and brief cases. Some ways employers fix the issue of intrusion into an employee’s office and their belongings in their desks, is to discourage employees from keeping personal material in these locations and also to warn employees in advance that those areas could be subject to search if the employer feels it necessary. An employer can enlarge or diminish employees expectation of privacy in their workplace is by publishing the employer’s policy in handbooks that should be given to all employees in the workplace. However although the employer’s should publish workplace privacy policies in their handbooks, if an employer can show a reasonable expectation of privacy exists, the federal courts have held with the decision that a public employer may conduct a work-related search in an employee’s office, desk and their files if they have “reasonable cause” for work-related non-criminal investigatory reasons.

Lastly, when determining whether an employer’s disclosure of private information of an employee is actionable, the balancing test will be between the employer’s legitimate business interest in telling the information to the recipient and the employee’s privacy expectation. The balancing test will be used to determine whether the interference of privacy was unreasonable, substantial or serious. If the information is something that its public disclosure would offend a reasonable person then the employer’s disclosure is not necessary. If an employer’s disclosure of private information may invade the employee’s privacy rights if the disclosure exceeds reasonable necessity. An example of this is it an employer has an interest in assuring that an employee is psychologically fit to perform their job doesn’t give permission to the employer to publicize its critiques of the employee in a newspaper.

Employees have many privacy rights in the work-place; however it can only be determined whether or not the employer is intruding upon the employee’s privacy rights with the balancing test or if the intrusion is offensive to a reasonable person.