1. What legal protection does Massachusetts provide employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time for any reason or for no reason at all under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make "common law protections" or (2) the legislature, which enacts "statutory protections." Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers' compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to "fill the gaps" where no statute exists for a given situation.
Common Law Protections
Massachusetts recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that violates a well-established public policy of Massachusetts. An employee has a cause of action in other words, the employee may sue for wrongful termination when the motivation for the discharge violates public policy.
To determine what constitutes public policy, Massachusetts courts will look to statutes and constitutional provisions to determine if a given practice has been endorsed (e.g. the right to collect workers' compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because a Massachusetts statute endorses an employee's right to collect workers' compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening public policy. In both situations, employees are protected from retaliatory discharge.
An employee must be able to point to some clearly defined and well-established public policy that is threatened by the employer's action. Merely performing a socially desirable duty is not protected. For example, an employee who criticizes a supervisor's performance, even if that supervisor is accountable to the public, will not be protected by the public policy exception. Nor are employees who sue their employers necessarily protected, even where the employee has a right to join a lawsuit (such as a shareholder derivative lawsuit against the employer). However, if an employer interferes with an employee's privacy rights, the employee may be able to sue for wrongful termination in violation of a public policy that favors privacy rights.
Massachusetts employees should be aware of two important limitations in wrongful termination suits. First, with respect to damages, an employee may only recover lost wages for past services, and may not recover future lost wages. Second, if there is a statute that provides an employee with protection from discharge and that statute provides a remedy, that remedy is the exclusive remedy. Thus, in those cases, an employee must follow the procedure detailed in the statute and may not file a common law wrongful termination claim.
In addition, the Massachusetts legislature has adopted narrow statutory protections for certain activities. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: asbestos, disabled persons' abuse, discrimination (including age discrimination), hazardous substances, medical professionals witnessing abuse of patients/residents or children, minimum wage, wage discrimination on the basis of sex, wages and hours, and workers' compensation. Additionally, Massachusetts has passed a statute to protect public employees.
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged in retaliation for performing a protected activity. Massachusetts courts have recognized the following protected activities:
- Asserting a legal right (such as filing a workers' compensation suit)
- Fulfilling a legal duty (such as serving on a jury)
- Refusing to commit illegal acts (such as committing perjury)
- Cooperating in a criminal investigations of the employer
- Reporting criminal wrongdoing to individuals within the company
Age Discrimination: An employee may not be discharged in retaliation for providing information in connection with a complaint or testifying in a judicial proceeding concerning age discrimination. An employer may be fined between $50 - $200 per violation. Mass. Gen. Laws ch. 149, § 24F.
Asbestos: An employee may not be penalized in retaliation for filing a complaint with the Department of Labor concerning the health and safety of workers who handle asbestos. Mass. Gen. Laws ch. 149, § 6D.
Disabled Persons - Abuse: An employee may not be discharged (or discriminated against) in retaliation for filing a report with the Disabled Persons Protection Commission, testifying in a commission proceeding, or providing information to the commission concerning the alleged abuse of a disabled person. Employers may be fined up to $1,000 and imprisoned for up to one year. Mass. Gen. Laws ch. 19C, § 11.
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for exercising a right under Massachusetts' laws against unlawful discrimination. Massachusetts prohibits discrimination in employment on the basis of race, color, religious creed, national origin, sex, sexual orientation, genetic information, or ancestry. Mass. Gen. Laws ch. 151B, § 4(4).
Hazardous Substances: An employee may not be discharged (or discriminated against) in retaliation for exercising a right, making a claim, filing a complaint, instituting a proceeding, or testifying at a proceeding concerning a violation of the state's hazardous substances laws. Mass. Gen. Laws ch. 111F, § 13.
Medical Profession Abuse of Patients/Residents: An employee may not be discharged (or discriminated against) in retaliation for making a report or testifying in a proceeding concerning the abuse, mistreatment, or neglect of a patient/resident or the misappropriation of the patient's property. Mass. Gen. Laws ch. 111, § 72G.
Medical Profession & Others Abuse of Children: An employee may not be discharged (or discriminated against) in retaliation for making a report or testifying in a proceeding concerning child abuse or neglect. Medical professionals and other persons (such as teachers, day care workers, and family counselors) are required by law to report cases of injury, abuse, or neglect to children. Mass. Gen. Laws ch. 119, § 51A.
Minimum Wage: An employee may not be discharged (or discriminated against) in retaliation for making a complaint or testifying in a proceeding concerning minimum wage laws. An employee may be fined up to $25,000 and imprisoned for up to a year for a first offense, if done willfully. Mass. Gen. Laws ch. 151, § 19.
Public Employees: An employee of the Massachusetts State government may not be retaliated against for reporting a violation of law or a threat to public health and safety, or to the environment. Mass. Gen. Laws ch. 149, § 185.
Wage Discrimination on the Basis of Sex (Equal Pay): An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, or testifying at a proceeding concerning violations of the state's equal pay laws. These laws prohibit discriminatory wage rates on the basis of sex. An employer may be fined up to $100 per violation. Mass. Gen. Laws ch. 149, § 105B.
Wages and Hours Laws: An employee may not be penalized in retaliation for filing a complaint, assisting in an investigation, instituting a proceeding, or testifying at a proceeding concerning violations of Massachusetts' Wages and Hours Laws. An employee may be fined up to $25,000 and imprisoned for up to a year for a first offense, if done willfully. Mass. Gen. Laws ch. 149, § 148A.
Workers' Compensation: An employee may not be discharged (or discriminated against) in retaliation for exercising workers' compensation rights or for cooperating with a workers' compensation proceeding. This provision also protects employees who may be discriminated against by future employers (in the hiring process) as well. Mass. Gen. Laws ch. 152, § 75B.
3. How do I file a whistleblower or retaliation claim in Massachusetts?
Generally: An employee may file a wrongful termination lawsuit in an appropriate court. The lawsuit must be filed within 3 years of the retaliatory action. If you believe you have a claim, you should contact a lawyer.
If for any reason you wish to contact the Massachusetts Department of Labor, they may be reached at:
Commonwealth of Massachusetts
Department of Labor
600 Washington Street, 7th Floor
Boston, MA 02111
E-mail: [email protected]
Discrimination: An employee may file a complaint with the Massachusetts Commission Against Discrimination (MCAD). The lawsuit must be filed within 300 days of the retaliatory action. MCAD may be reached by phone at 617-994-6000 (Boston) or 413-739-2145 (Springfield).
Hazardous Substances: An employee may file a complaint with the Department of Labor, Division of Occupational Safety. The complaint must be filed within 180 days of the retaliatory action. The employee must also send a copy of the verified complaint to the employer, by certified mail, return receipt requested at the time of filing. The commissioner will conduct a preliminary investigation and, if there is sufficient evidence, may conduct an administrative hearing to resolve the matter. An employee may appeal the commissioner's determinations in court. If you believe you have a claim, you should contact a lawyer immediately. You can contact the Department of Labor, Division of Occupational Safety at 617-969-7177.
Public Employees: An employee may file a civil action in a superior court with two (2) years of the retaliatory action. If you believe you have a claim, you should contact a lawyer. Mass Gen. Laws ch. 149, § 185.
Wages and Hour Laws: An employee must first file a complaint with the Massachusetts Attorney General, who may pursue a criminal charge. An employee may then file a lawsuit in an appropriate court, no sooner than 90 days after filing a complaint with the Attorney General, but within three years of filing. If you believe you have a claim, you should contact a lawyer. Mass. Gen. Laws ch. 149, § 50.