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.

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.