Massachusetts: Firing an Employee for Filing a Rebuttal in Their Personnel File Violates Public Policy
By Erica E. Flores - Skoler, Abbott & Presser, P.C.
December 23, 2021
In Massachusetts, employees have a statutory right to respond in writing to anything negative their employer puts in their personnel file unless the employer agrees to make changes that are satisfactory to the employee. But is that right limited in any way? Or can employees file whatever they want, even if it contains content that is contrary to an employer’s policies?
Last January, the Appeals Court considered this question and concluded that Massachusetts employers are not legally prohibited from firing employees for exercising their right to file a rebuttal in their personnel file. However, the decision was not unanimous and the case attracted the attention of numerous legal organizations, who urged the Supreme Judicial Court to review the Appeals Court’s decision.
Ultimately, the SJC did agree to consider the case and, in a recent decision, the Court reversed the Appeals Court and ruled that Massachusetts employees who exercise their right to file a rebuttal are protected from being terminated for doing so by Massachusetts public policy. The decision is an incredible victory for employees, and could create new challenges for employers.
Sales specialist submits lengthy rebuttal to his PIP and is immediately terminated
In November 2010, Medical Information Technology, Inc. (“Meditech”) hired Terence Meehan as a sales representative. He held that position until April 2017, when Meditech reorganized the sales representatives in his assigned region and demoted him to a sales specialist, which reduced the potential for him to earn sales commissions. His supervisor also placed new limitations on the sales specialist position.
Fifteen months later, in July 2018, Meehan’s supervisor placed all three of his region’s sales specialists on performance improvement plans. Meehan wrote a lengthy rebuttal. On the very same day, Meditech terminated his employment.
In February 2019, Meehan brought suit against Meditech in Norfolk County Superior Court. He asserted just one claim – that Meditech’s decision to terminate him was a violation of Massachusetts public policy because, under the state’s Personnel Records Law, M.G.L. c. 152, § 52C, he had a statutory right to respond in writing to anything negative Meditech placed in his personnel file. Meditech moved to dismiss, arguing that Meehan’s claim could not proceed because his termination did not implicate a sufficiently important or well-defined public policy. The trial court judge agreed and a divided panel of the Appeals Court affirmed the dismissal of Meehan’s case.
The right to rebut a personnel record supports a wrongful termination claim
In Massachusetts, the general rule is that an employee who is employed at-will (as most employees are) can be terminated for any reason (or no reason) as long as the reason does not violate a statute or other established rule of law, such as the laws against discrimination. The Supreme Judicial Court has recognized a few narrow exceptions to this general rule based on certain public policy interests, including the assertion of a legally guaranteed right. Previously, however, the SJC’s rulings indicated that a public policy could only form the basis for an exception if the policy was of sufficient importance to the public at large. Accordingly, the SJC had made clear that “the internal administration, policy, functioning, and other matters of an organization cannot be the basis” for a public policy exception.
In Meehan, the SJC departed quite dramatically from these longstanding principles. First, the Court decided that judges should not consider whether a public policy is sufficiently important or relates only to an organization’s internal matters when the policy is an employment right recognized by the legislature in a statute. This is because, by passing a statute that creates an employment right, the legislature “has already made both determinations, concluding that the right is a matter of public significance.”
The SJC also disagreed with the Appeals Court’s conclusion that the right to file a rebuttal is not sufficiently important to warrant creating another exception to the at-will rule. For one thing, the right in question was not just the right to file a rebuttal, but also the right to have a “complete and reliable record of an employee’s tenure,” as found in the provision of Section 52C that requires employers to retain accurate personnel records. Additionally, these rights are of considerable public importance because they relate not just to an employee’s current employment but their ability to seek other employment, and they enable other employers to make informed hiring decisions, “thereby preventing terminated employees from becoming public charges.” They also facilitate the evaluation of an employer’s compliance with the Commonwealth’s many other employment laws, including those that require timely payment of wages and forbid discrimination in the workplace.
The SJC did recognize that the legislature had already included a remedy for violations of Section 52C and that the remedy does not redress the termination of an employee who exercises his right to file a rebuttal. According to the Court, however, this omission was simply an indication that the legislature did not even consider the possibility that an employer might terminate an employee for that reason. “Indeed,” the Court wrote, “such a response would appear to be sticking a finger in the eye of the Legislature” and would “empower any employer who so desired to essentially negate the important policies served by the right of rebuttal.” In the Court’s opinion, therefore, recognizing a new right of action for terminated employees would complement, rather than conflict with, the statute’s remedial scheme.
Finally, the SJC reasoned that recognizing this new remedy would not interfere with employers’ internal affairs or transform the courts into super-personnel departments because the right to file a rebuttal is narrow and employers remain free to terminate employees for any other reason, even if they have filed a rebuttal. However, the Court warned employers against taking action against employees for the contents of the rebuttal. The Court explained that, because rebuttals are only permitted where there is disagreement between the employer and the employee about the content of something in the personnel file, they can be “expected to involve disputed, contentious subjects and vehement disagreement.” Employees are not protected from termination if they threaten violence, verbally abuse someone, or include “similarly egregious” content in the document, but short of that, the SJC advised that “the exercise and expression of the right of rebuttal should not be grounds for termination when it is directed at ‘explaining the employee’s position’ regarding the ‘disagreement[,] no matter how intemperate and contentious the expression in the rebuttal.”
The Meehan decision is an important one for many reasons. Most importantly, it recognizes a new legal claim that a terminated employee can bring in court against their former employer. Obviously, this creates a new source of potential liability for employers. But it also creates a new source of protection for employees, and as a result, it may incentivize employees to exercise their right to file rebuttals more often, especially when their performance has been poor or they have other reasons to suspect that their employment is not secure. This makes it all the more important for employers to be diligent about performance management; creating a documented record of performance problems (and efforts to address them) before pulling the trigger on a termination is the best way to defend against any wrongful termination claim.
Meehan also gives employees a powerful outlet to express disagreements with supervisors and other work-related complaints with near impunity. The claim created by the case is for wrongful termination so, technically, it only exists when an employee has been terminated, but employers should carefully consider the potential legal ramifications of taking other disciplinary action against an employee based on something they wrote in a rebuttal, no matter how disrespectful and no matter how much it may harm important supervisory relationships. Indeed, it is hard to come up with a good reason why an employee should be protected from termination but not from other adverse actions that may be taken against them for filing a rebuttal.
Finally, the Meehan decision leaves the door wide open for more new claims against employers based on other statutory employment rights. Indeed, any statute that creates a right for employees that does not also protect them from being terminated for exercising it is now a legitimate candidate for the public policy exception, regardless of whether it has any obvious importance to the public or relates only to an employer’s internal operations. Consequently, employers should consider the risk of a lawsuit any time they consider terminating an employee who has taken action that is encompassed by a statute, regardless of whether the statute expressly protects employees from retaliation. When in doubt, employers should consult employment counsel, who can help them understand the rights at issue and assess their legal risk.
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