Wrongful Employment Termination Laws in Massachusetts

For this week’s column, I thought I would discuss some specific Massachusetts laws that make an involuntary termination from employment unlawful in Massachusetts. Please keep in mind, however, that as a general rule, Massachusetts is an employment at will state. Therefore many involuntary terminations, even though unfair, are still lawful. In previous columns, I have described at some length the harshness of the employment at will doctrine and, thus, will not include it as part of this column.

Massachusetts General Law Chapter 152, sect. 75B(2) prohibits employers from discharging or otherwise discriminating against an employee for exercising rights under the Worker’s Compensation act. An interesting exception within this statute, however, is that this law does not apply to employees who are subject to an inconsistent collective bargaining agreement. What this means is that if the employee is in a union, and the union contract states that arbitration is the sole remedy for an employee termination, then the union contract will “preempt” the Massachusetts law. Nonetheless, if in fact the employee can show that they were indeed terminated because of the worker’s compensation claim they should still win their case of wrongful termination.

Massachusetts General Law Chapter 268,sect.14A makes it unlawful for an employer to terminate an employee for serving on a jury. Indeed, a secondary authority on this issue provides a terminated employee with a specific civil remedy, as well as subjecting the employer to criminal charges.

In previous columns, I have discussed wrongful terminations based upon an
Employer refusing to pay the employee previously earned income, as well as providing the employee the right to treble damages for the wages, reasonable attorney fees (admittedly an oxymoron), and interest.

A Federal statute, the “Occupational Safety and Health Act” (OSHA), section 11c prohibits the employer from discharging an employee for exercising his/her rights under the OSHA law. Massachusetts has a law with similar provisions, known as “The Right-to-know Law,” which also has a non-retaliatory provision.

There are additional similar protections under Massachusetts case law, known as the Flesner doctrine (named after the plaintiff in the particular case) that provide employees with remedies for terminations for cooperating with law enforcement agencies, as well as for “Whistle-Blower” actions where employees are terminated for reporting unlawful conduct by their employer. In 1994 the legislature passed a law that provided specific remedies for public employees who engage in whistle-blowing against their agency. There is also a “Public Policy Doctrine” in Massachusetts, derived from the State Constitution, that also provides employees with protection from wrongful terminations in which they report employer practices that would be considered in the “public’s interest” to be aware of.

Also, as discussed in previous columns, Massachusetts has rigorously enforced anti-discriminatory laws that provide rights to employees who are involuntarily terminated as a result of what is called a “protected class.” The descriptions of these classes can be found under Massachusetts General Laws chapter 151b, and are usually enforced at the Massachusetts Commission Against Discrimination.

The above laws are only some of the provisions that protect employees from wrongful terminations, and are not intended to be all-inclusive. Also, in order to determine if a particular set of circumstances falls within any of these laws, it is a good idea to check with an attorney who focuses on employment law.

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State Agencies for Employment Rights

For this month’s article I decided to describe the various State agencies that enforce employment laws in Massachusetts. I have listed the names of the agencies, along with contact information, and a brief description of the services that they provide:

Massachusetts Office of Business Development: This office is the State’s principal business development agency. It assists in the expansion and location of business and is responsible for promoting Massachusetts as a business location. Located at 100 Cambridge Street in Boston. Telephone number 617-788-3695.

Department of Business Development: This agency works to promote the development of business and industry, travel and tourism, science and technology, international trade and women and minority business development in the Commonwealth. It is also located at 100 Cambridge St and they can be reached at 617-788-3605.

Civil Service Commission: A quasi-judicial body to which appeals may be addressed regarding the merit system in public employment. It can review, for example, original and promotional bypasses, and the discharge, removal, suspension, transfer or reduction of rank of civil service employees. The employee must, however, be a civil service employee in order for the agency to have jurisdiction. I usually tell clients that unless you are aware that you are a civil service employee you probably aren’t one. Not all “Public Employees” are civil service employees. The agency is located at one Ashburton Place and the telephone number is 617-727-2293.

Commission for Deaf and Hard of Hearing: This agency helps deaf and hard of hearing get some of the aid/services that help the hearing impaired to function within the workplace. Located at 150 Mt. Vernon St. Dorchester Mass.

Massachusetts Commission Against Discrimination: Enforces MGL 151 B which prohibits discrimination in employment in regards to Race, Color, Religion, National Origin, Ancestry, Sex, Maternity and Sexual Harassment and Age if the employee is 40 or over. Also, Criminal Records on Applications, Handicap, Mental Illness, Maternity Leave and Sexual Orientation and Recovering Addicts. The agency is located at 1 Ashburton Place in Boston. Telephone # 617-994-6000 or in Springfield at 413-739-2145.

The Division of Human Resources is also located at 1 Ashburton Place and is responsible for the establishment and maintenance of a merit system of personnel administration for the Commonwealth. Telephone # 617- 727-1477.

Department of Industrial Accidents located at 600 Washington St. in Boston. This office is responsible for ensuring that Employers meet the requirements of the Worker’s Compensation Act and that Employers have valid insurance contracts. They also have offices in Fall River, Springfield, Worcester, and Lawrence.

Executive Office of Labor and Development which seeks to make new opportunities and training available for workers, job seekers, and employers. Helps to prevent work place injuries and health problems. Also it informs businesses of employment laws and how those laws impact them and their employees. The Department is located at 1 Ashburton Place and the telephone # is 617-626-7122. Also the Department of Labor is located in the same building and is responsible for the enforcement of the wage laws of the state. Telephone # 617-626-7100.

Division of Occupational Safety administers workplace safety and health programs which also includes issues of wage scales for public works projects i.e. “prevailing wage rates”. The department has offices in Haverhill, New Bedford, Pittsfield, Springfield, West Newton and Westborough.

Public Employee Retirement Administration Commission which oversees all of the 106 public pension systems in the state including city, town, county and state pensions.

Hopefully, while this is not a comprehensive list of all of the agencies that are in someway connected to Employer/Employee issues within the state, it will be of some help. Remember if you have an employment issue, it is a good idea to talk with an experienced employment attorney before taking any actions.

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Employment Retaliation

I often have clients come into my office seeking advice concerning issues of retaliation in the workplace.  I usually begin, after listening to the client’s story, with an analysis of what is considered unlawful retaliation, compared to conduct by a boss or co-worker that is actually motivated more by a simple personality conflict.  In order to be classified as unlawful, the retaliation must be based on what the law describes as “protected activity.”  So, for example, if an employee goes to their personnel department and files a complaint against their boss for being “unfair,” and the boss becomes upset at the employee and in some way punishes the employee, that is not unlawful retaliation.  Obviously, the boss’s conduct, in this example, meets “Webster’s” definition since the boss’s anger is pursuant to the employee’s complaint and the response is punitive.  Nonetheless, since the employee’s complaint is based on the employee’s perception of the boss’s treatment, the law does not provide a remedy and does not categorize the retaliation as unlawful.  If, however, the employee’s complaint was based on sexual harassment, any form of retaliation would be considered unlawful retaliation.

The easiest way to understand the difference, since in both examples we are dealing with an employee’s perception of the boss’s conduct, is to realize that the law does not define “unfair conduct” as unlawful; whereas there is a statue that prohibits harassment of a sexual nature within the workplace.  Hence the term “protected activity” when describing the employee’s complaint to the personnel office.  Therefore, in order for the retaliation to be unlawful, the conduct that is the subject of the complaint must include allegations of unlawful conduct.

Often, at this point of the interview, the client will indicate to me that the company handbook states that they have an “open door” policy, and consequently retaliation for any complaint should be unlawful.  I often agree with their statement, but nonetheless, as an attorney, I have the unpleasant task of informing them that an employee handbook does not create law since, under most conditions, the handbook will include a disclaimer stating that the contents of the handbook are for informational purposes only, do not create any enforceable rights, and can be changed at any time at the sole discretion of the employer.  Therefore, when an employer does not comply with it’s own policies, that conduct by itself is not considered unlawful conduct.  Therefore, the complaint would not be considered “protected activity.”

Nonetheless, virtually any statute or law pertaining to the workplace does include a provision that makes any form of retaliation by an employer, pursuant to an employee’s complaint, unlawful retaliation.  Some examples of these laws include complaints based on gender, age, ethnic background, race, color, religious preference, and sexual preference.  Therefore any complaints alleging violations based upon these categories is “protected activity.”  Also, filing a Worker’s Compensation or Wage claim is considered “protected activity,” as is filing OSHA complaints.

If you are experiencing what you believe to be workplace retaliation, the prudent course of action is to check with an employment attorney to determine your rights.

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Sales Commissions Upon Involuntary Termination

Often in my employment practice, I have clients, who are salesmen, that inquire about their “commission payments” and their legal rights surrounding these payments when they have been involuntarily terminated.  As a general rule, if the “commission” has been “earned” prior to the termination, the commission in fact is payable.  This, of course, begs the question as to when the commission is earned.

The issue of when a commission is earned is usually resolved by the company’s own policy regarding the timing of payment of commissions.  There are typically three different periods when a company determines that a sale has in fact been made and triggers a payment of a commission.  The initial period is at the time of the sale itself.  If, in the normal course of their business, the time of sale is when the commission is earned, then upon termination the salesman is owed those commissions.  If, on the other hand, the company, pursuant to their own pay practices, pays commissions at the time of the delivery of the product or the service, then that becomes the time at which the payment has been earned.  The third scenario is if the company pays the commission at the time they receive the payment for the goods or the services, then the commission is earned at that time.

In summary, the law defines the term “earned” based upon the company’s own practices.  Once  a commission has been “earned,” it is then treated the same as wages and is payable to the employee at the time of any termination.  It’s always a good idea to seek experienced legal advice when presented with employment law questions, since the only person who has legal rights is the person who knows what their legal rights are.

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Non-Compete Agreements

Covenants not to compete are contracts provided to an employee by an employer that are intended to limit and/or restrict an employee from working for competitors after the employment relationship is terminated. They are sometimes given to the employee at the time of the employment offer, but in other situations given to the employee after the employee has already started to work. The employer views these contracts as protecting legitimate business interests. Specifically the employer is trying to protect themselves from former employees, using their knowledge of the company, to take some hard earned business away from them. Of course, the employee often has a different view of the contracts and thinks of them more as a restraint on their freedom to work. Consequently, Massachusetts Courts attempt to balance these legitimate, but sometimes conflicting, interests. 

I think the best way to attempt to analyze these conflicting interests is to think of a filter, which the terms of the contract are required to pass through. The filter is composed of “reasonableness,” and each of the terms of the agreement must pass through the filter in order for the courts to enforce the agreement. The terms in most these agreements are “duration,” “scope,” and “location.” The term “duration” is pretty much self-explanatory, and simply means the length of time that the restrictions are in place. Typically these lengths of time are periods between six months and two years, and prevent the employee from working for the competitor for the designated period. In order for the Court to find the duration of the restriction to be enforceable, the Court has to determine that within this specific situation the restriction is “reasonable.” The definition of “reasonable,” however, is clearly a task that keeps attorneys employed and often is hotly contested. 

The second concept that has to pass the “reasonable” test is the size of the area the restriction applies to. A number of years ago, I had a case that provides a very simple example of this concept. It was a car dealership case and the restriction within the agreement was 15 miles. The judge was Judge Zobel. He was a colorful man who was known for always keeping fresh flowers on his bench. He initially ruled that the distance of 15 miles was reasonable. He then went back into his chambers and came out with a map that had a legend that measured distance. On the spot, he then determined that the dealership that my client was working at was within the prohibited area. When we left the courtroom 5 minutes later, my client was unemployed. Oh well, you win some and lose some. Of note, with the development of Internet sales this concept of geography has changed dramatically and is interpreted much more broadly than it used to be.

The third term that passes through the “reasonableness” filter is the concept of scope. An example of this is if a salesman works for a company that sells a particular product and leaves to work for a competitor, but in the new job his responsibilities do not include selling that particular product. In this case the restraint may not be enforceable since the company would have a difficult time attempting to show that they were protecting a legitimate business interest since, presumably, the salesman could not use inside information to unfairly compete if he were not selling the particular product.

Over the years, I have often had clients come in and indicate that they had heard that these contracts were not enforceable. Although the burden of proof is definitely on the side of the employer, courts do enforce these agreements if they are drafted using a “reasonable” filter. If you have, or are being asked to sign, a non-compete agreement, it is a good idea to check with an experienced employment attorney before doing so. Remember, the only person who has legal rights is the person who knows what their legal rights are.

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Unemployment Rights

I was recently going through some old training material that I used when I was first starting out those “oh so many years ago,” and discovered some unemployment material that I thought might be helpful.  The first section was titled “Were you discharged in a manner disqualifying you from unemployment benefits?”  The manual, which was put out by the state, breaks it down into two categories:  deliberate misconduct and rules violations cases.  In the first category of deliberate misconduct, the employee doesn’t get disqualified unless the employer can show, by a preponderance of the evidence, a legal term that loosely means “more likely than not” that the employee engaged in deliberate misconduct in willful disregard of the Employer’s interest.  The guide makes a point of explaining that the terms “deliberate misconduct” and “willful disregard” are two separate concepts, and that the employer has the burden of proof on both of these issues.  Specifically, the employer has to provide evidence as to the employee’s state of mind at the time of the alleged misconduct in order to show that the conduct was “deliberate” and also to show that it was with “willful disregard” of the employer’s interest.  This, for obvious reasons, can be difficult to show since evidence of someone’s state of mind can be difficult to come up with.

Examples of state of mind evidence include testimony of someone who had first hand knowledge of the events, or contemporaneous writings that detail the actions.

Deliberate misconduct is defined as conduct that is intentional, and disregards the standards that an employer has a right to expect.  The standards can be established by rule, policy, warnings, or direct orders.  Mere unsatisfactory performance is not enough though, unless the employer can prove that the conduct is intentional.

The second category is, “Was the employee terminated for a rule violation?”  If this is the theory of the case, the employer must show that the employee knew what the rule was, that the rule was reasonable, and that the rule is uniformly enforced.  It is important to note, however, that if the employee’s rule violation was performance in nature, for example an employee, in spite of his or her best efforts, doesn’t meet a uniformly enforced quota of production, the employee is not disqualified from receiving the benefits.

Hopefully, the above description is helpful.  I recognize, however, that some of these distinctions can be subtle, and/or confusing.  If you are an employer trying to win one of these cases, or an employee who has to go to a hearing, it is recommended that you seek the advise of an experienced employment attorney.


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Sexual Harassment as a form of Discrimination

Many people don’t realize that sexual harassment is actually a form of sex discrimination. The statute that makes sexual harassment unlawful in Massachusetts is MGL 151B and, although there are also federal statutes that prohibit sexual harassment, often, assuming that the cause of action occurred in Massachusetts, it is better for an employee, to file the action using the Massachusetts law. The Massachusetts Commission Against Discrimination is the agency that enforces the statute, and it is located at 1 Ashburton Place in downtown Boston. Although it may be advisable to utilize the services of an experienced employment attorney in pursuing a claim, the Commission does not require that you do. The agency is actually in the executive branch of the government, i.e. the Governor appoints the Commissioners and is responsible for the agency’s management, and therefore, because it is not in the judicial branch of government, the rules of evidence don’t strictly apply. This can sometimes allow the “story” to be more easily presented. 

The statute defines two specific forms of sexual harassment: “quid pro quo” harassment, where the request for sexual favors or acquiescence in sexual advances becomes necessary in order to maintain the person’s job, or as a requirement for promotions; and “hostile environment” sexual harassment which is defined as an environment which “unreasonably interferes with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.” I often describe this second type as conduct of a sexual nature that is hostile and does not allow an employee to fully participate in the workplace. The statue of limitations on these claims is 300 days from the date of the actions, but this issue is often more complicated than just counting the days on a calendar so it is wise for an employee to check with the Commission, or an attorney, prior to making any definite decisions. 

Over the years, I have had a number of cases where the defendant employer has claimed that they were unaware of the conduct and, therefore, cannot be responsible for the behavior. In Massachusetts this is not a defense, assuming that the conduct in question is from a supervisor or someone acting in a supervisory capacity. This is not necessarily the case in either Federal Court or in some other states, and is one of the reasons that the Massachusetts Commission is a preferable forum for employees. 

Cases of sexual harassment are often very delicate and difficult for both the employer and the employee, and they can get very emotional. They are usually “fact driven” cases and often revolve around the credibility of the parties and/or witnesses. The judgments in these cases are varied with some cases resulting in complete aquitals for the employers or in judgments for the employee. The judgments for the employee can range from nominal damages to the thousands, or even in rare cases to seven figures. If you are an employer who has been accused of sexual harassment, or an employee who has been the victim of harassment, it is a good idea to at least talk with an experienced employment attorney prior to taking any action since the only person who has legal rights is the person who knows what those legal rights are. 

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