Can my boss retaliate against me for complaining about my pay?

As an employee in Massachusetts, you may be considered an employee at will, and you employer may even be able to fire you for no reason at all, but if they do take adverse actions against you because you complained about your pay or demanded benefits be provided that you are entitled to, that is considered retaliation and unlawful.

In Massachusetts there are very strong laws that relate to an employee’s salary and wages. As a matter of fact, chapter 149 of the General Laws prohibits retaliation for an employee exercising his right to seek wages due to him. In order to establish a claim for retaliation, an employee will need to prove that: (1) he engaged in protected activity; (2) he suffered adverse employment action; and (3) there is a causal connection between his protected activity and the adverse action. In addition to this, the law has a specific provision that protects an employee who seeks his rights under the law and adds additional protection against retaliation. A retaliation claim looks to the employee’s good faith belief that the employer’s actions were unlawful and an employee’s retaliation claim may succeed even if an underlying claim for wages does not ultimately prove victorious.

One of the things that a court will look at to determine if your boss or company retaliated against you is in the time between your complaining about your wages and any adverse action taken against you. More specifically, the Supreme Judicial Court has held that causation may be inferred from the temporal proximity between an employee’s protected conduct and an employer’s adverse action. The SJC explained that where retaliatory action follows “close on the heels” of protected activity, a causal relationship may be inferred. Finally if you were simply treated differently than other employees who did not complain about some unlawful activity, a Court may deem this enough to classify bad behavior on your boss or company’s part retaliation.

The bottom line is this. If you feel that your employer has short changed you, or simply refuses to pay for all of your time worked, commissions earned or vacation time accrued, you should complain, and even speak to an employment law attorney about your rights. Don’t be afraid as the law is there to protect you.

Wrongful termination in Massachusetts

If you work for a company in Massachusetts and you do not have a contract for a specified period of time at a particular wage rate, then you are considered an employee at will. What does this mean?  Well, it is quite simple, your employer can fire you for any reason or no reason at all, so long as the reason is not an unlawful reason for termination. There are really only two reasons that fall under this unlawful characterization; first, you can not be fired due to your status in some protected class. Should you be fired as a result of your membership in a protected class that would be deemed employment discrimination and any termination could be improper. Second, you can not be fired because you complain about the company doing something illegal, or for refusing to do something your boss asked you to do that is against the law.

EMPLOYMENT DISCRIMINATION

The first type of wrongful termination in Massachusetts is based upon anti-discrimination laws, or the Massachusetts Fair Employment Practices Act. Under this law, you can not be singled out as a result of your race, gender, religion, sexual orientation, national origin, or due to some handicap either mental or physical unless the discrimination is based upon a bona fide occupational qualification required for the specific job.

COMPLAINING ABOUT ILLEGAL CONDUCT OF THE COMPANY

The second type of wrongful termination in Massachusetts is based upon the whistle blower laws. More specifically, it is not permitted to fire an employee when the employee’s termination would violate a public policy.  Upton v. JWP Businessland, 425 Mass. 756, 757 (1997) (and cases cited therein). An employer may violate public policy when it terminates an employee who was performing an important public deed. This is true even where the law does not require that the employee perform the public deed. As such, the courts have recognized that one such important public deed is whistle-blowing or complaining about the unlawful conduct of the company. Thus, so long as the employee acted in good faith and with a reasonable belief of the threat of harm to the public, he engaged in protected activity. In short, an at-will employee may not be fired for reporting circumstances that the employee reasonably and in good faith believes violate our public safety laws and present a threat to the public safety. Even internal reporting (i.e. to a corporate superior) will suffice in a public policy case. Additionally, “[r]edress is available for employees who are terminated for asserting a legally protected 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).” Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 472 (1992).

The law is actually quite simple with respect to whistle blowing. In order to prove a claim for wrongful termination in violation of public policy, the employee must demonstrate that: (1) she expressed concern relative to a matter of public policy; (2) she suffered adverse action; and (3) a causal relation exists between her protected activity and the adverse action.

RETALIATION:

In addition to having a claim for wrongful termination due to discrimination, an employee man also have a valid claim for retaliation in response to asserting a right to stop the discrimination before it is too late. In Massachusetts, retaliation is a separate and distinct cause of action from discrimination. Therefore, a Plaintiff does not even need to win on their discrimination claim in order to prevail upon a retaliation claim that is based upon the same set of facts as the discrimination claim. Accordingly, to prevail on a claim for retaliation, a former employee must show: (1) he engaged in protected activity; (2) he suffered adverse employment action; and (3) a causal connections between his protected activity and the adverse employment actions he suffered Mole v. Univ. of Mass., 442 Mass. 582, 591-92 (2004).

Where adverse action follows very closely in time to complaining about either discrimination or some other unlawful conduct of the employer, an inference of causation may arise. As a matter of fact, the Court in the Mole case held, (“[I]f adverse action is taken against a satisfactorily performing employee in the immediate aftermath of the employer’s becoming aware of the employee’s protected activity, an inference of causation is permissible.”).

While all of the information in this blog post does suggest certain things that you might look at to determine whether you as a former employee were wrongfully terminated from your job, it is important to note that each and every case is very fact specific and you really do want to speak to an experienced employment discrimination lawyer in your state about the details of your situation to properly analyze whether you have a claim or not.   As with all cases, the law is not black and white, but there is a lot of gray shades that need to be considered and you should consult with a lawyer as soon as possible, because your time is very limited in most cases 300 days or less from the day you were fired.

You can’t be fired due to a wage garnishment in Massachusetts

Employees often fear that their personal lives, especially their financial affairs and any public records can come back to haunt them at work. As an example, many people in society today have lived or continue to live on the use of credit and loans. As a result, if something happens financially to the family, such as an illness or FMLA leave, the loss of a job, divorce, etc, they may fall behind on payments. When this happens, a creditor does have the right to sue that person and even ask the Court to force the person’s employer to hand over a portion of their wages to pay back the creditor. In Massachusetts, a Plaintiff can ask the court to force the employer to hand over up to 15% of wages.

When a wage garnishment happens, or creditors start contacting an employee’s job, many employees have an unreasonable fear that the employer will be upset with the employee for letting this happen and cause the employer to incur additional administrative expenses. As a result, the employee is afraid that the employer will fire them or take some other form of adverse employment action. However, this fear is unjustified and frankly would be considered a wrongful termination and a violation of the Federal law.

More specifically, it is unlawful for an employer to fire or take any adverse or negative action against any employee due simply to the fact that the employee’s wages or salary has been garnished by a creditor, pursuant to the Consumer Protection Credit Act, 15 U.S.C., 1674. Now this is not to say that if your salary is going to be divided and paid to someone other then you, it is a good thing, and if it does happen, you would be well advised to seek the advise of a lawyer who may be able to stop this garnishment, but at the end of the day, your job should not be at stake just because of a financial hiccup that has nothing to do with your work.

Discrimination Age in Employment Act

Often times employees believe that they are being discriminated based upon their vast experience in a company or their advanced age. In some situations if an employee has worked with a company so long that they are considered to have seniority over other co-workers, they feel targeted in order for the company to reduce their payroll. The ironic thing is that in order for someone to have a valid claim for age discrimination under the Federal Age Discrimination Employment Act, they only need to be over the age of forty (40). Likewise, under the Massachusetts Fair Employment Practices Act, if an employee is seven (7) years older than another employee who is being treated more favorably, they may be able to file a claim for age discrimination in the workplace pursuant to M.G.L. c. 151B.

It is unlawful for an employer to treat an employee who is over the age of forty (40) in a hostile or adverse way as opposed to how the employer treats other co-workers who are under this threshold age pursuant to The Age Discrimination in Employment Act (ADEA). The Age Discrimination in Employment Act also makes it illegal for an company to require an employee to retire when they reach a certain age.

The only real defense that an employer can raise if they treat an employee over the age of 40 in a disparate manor is if the job or duties of that job have a bona fide occupational qualification. Essentially, an employer must be able to demonstrate that no person over the age of 40 or whatever the specific age cut-off that is used after 40 years by the employer can not perform the essential functions of the position. If the employer can not prove that there is a real reason that the job duties must be performed by a younger employee, then a judgment for the discriminated employee is likely to follow.

If you believe that you have been treated differently at work because of your age, you may have a valid claim for age discrimination and you should consult with an experienced wrongful termination lawyer in your state. However, you should keep in mind that every case is unique and the specific facts in your matter will determine the outcome.

Can your employer make you work nights or weekends?

In Massachusetts an employer can require you to work during any time that meets their actual business objectives. If you are an employee at will, meaning there is no employment contact then you can be fired for any reason or no reason at all. As such, if you choose not to work when your supervisor directs to do so, your employment can be terminated. Alternatively, if you are working under a contract, and the terms of the contract provides for no specific restrictions on the hours you are told to work within the 40 hour guideline of Massachusetts employment law, your employer may also try to fire you for not working when directed.

When taking your employers power to control your time schedule into account though, there is a limitation to this power your employer has, which is that they can not treat you in a disparate manor due to your classification in any protected class. More specifically, The Massachusetts Fair Employment Practices Act, M.G.L. c. 151B, broadly prohibits discrimination in places of employment on the basis of an employee’s status as a physically or mentally impaired individual. A qualified disabled person is an individual who can perform the essential functions of her position either with or without a reasonable accommodation. See Labonte v. Hutchins & Wheeler, 424 Mass. 813, 816 n.3 (1997).

If you in fact have some sort of medical condition which requires you to treat during a specific period of time your employer wants you to work, you may be able to request a reasonable accommodation to not work during that specific time period to treat for your disability with proper medical documentation. You can make this request based upon the fact that you need to treat your medical condition in order to be able to perform the essential functions of your job, and this medical treatment will allow that to occur. Once you make this type of reasonable accommodation request, your employer must engage in the interactive process to determine if your request meets the standards set forth under the law. Perhaps even more importantly, your employer can not fire you because of an absence due to a physical or mental impairment. Stated more succinctly, where an employee’s absence is caused by her disability, termination because of the absence may constitute unlawful termination because of the disability. Cf. Ward v. Massachusetts Health Research Institute, 209 F.3d 29, 37-38 (1st Cir. 2000). In Ward, the plaintiff was terminated because he was often excessively tardy to work. The plaintiff claimed this was because his severe arthritis made it difficult for him to be timely.

The bottom line with this analysis is that your employer in most cases can tell you where to work, how to work and with whom you must work. However, if there are extenuating circumstances such as a physical issue that requires you to miss work during a certain period of time you have rights and should not allow an overbearing supervisor or employer to tell you otherwise. With all of this said, these are very fact specific and complex issues that you would be best suited to discuss with an experienced employment discrimination attorney.

Are Employee Handbooks required in Massachusetts?

employee rights and dutiesWhenever you start a new job there are a host of papers or PDF files that your employer gives you to read on the first day. For example, there are a host of employee tax documents and employee benefit programs that require an employee’s signature acknowledging that they read and received the documents. These are all very important because it has a direct impact on your compensation and health insurance. However, one set of documents that many employees expect to receive is an employee handbook or a “labor law” handbook. It should be noted that there is no federal law or Massachusetts statute which requires an employer to maintain a handbook.

An employee handbook is usually created by the company based upon their specific management needs. This handbook usually outlines the rights and duties of an employee based upon the applicable federal and Massachusetts fair employment practices act and often mirror the company’s philosophy and culture.

Some companies though decline to draft these policies because they can also create liability for the company if the rules outlined are not followed by the employer. Even though many states such as Massachusetts are considered employee-at-will (or right to work) states, Courts have routinely held that a company can be held in breach of contract for not following its own rules.

The bottom line is if you are starting a new job, you will be given many document and be required to sign stating you read and reviewed all of those first day papers. You want to be sure if there is an employee handbook that you not only see the cover but understand what is inside it as one day those policies may save your job or give you cause to be fired

Do you have to provide notice to quit?

Often times an employee finds themselves in a job that they feel compelled to quit due to either a hostile work environment, a medical or family situation or other external situation that requires the employee to cease their employment. When this occurs, many people are confused as to the process and time line of how to voluntarily end their employment. It is customary to provide two weeks’ notice to your employer that you will no longer work for them, so that the employer has time to find a suitable replacement. However, it is important to note, there is no law in Massachusetts that requires an employee to give any notice. It is absolutely permissible under the Massachusetts Fair Employment Practices Act and any other employment statute to simply notify your boss that you resign.

The next question many employees ask is whether they need to provide written notice to their employer.   Unless there is some sort of contract or union agreement that requires a written notice, any communication of an employee’s intent to quit will suffice, such as a phone call, email, letter, etc. However, if you are quitting due to a hostile work environment or you believe you have been discriminated against based upon your race, religion, gender, disability or some other protected class, many attorneys advise their clients to draft a detailed constructive termination letter creating a written record of all of the bad acts of the employer which led to quitting the job. In fact, if you quit in Massachusetts, you may not qualify to receive unemployment assistance unless you can show that no other reasonable person could continue to work and withstand the hostile work environment created by the employer.

Now both the time element and the manor of notice are based upon the presumption that the employee in question is an employee at will. That means that there is no written employment contract for services. If there is an actual contract, and this does not mean a written offer letter, but rather a bargained for agreement, the terms of that contract will be controlling. However, even if the contract called for written notice and a period of time, the employer would have to demonstrate calculated damages in order to bring a breach of contract law suit against the employee.