Massachusetts Creates At-Will Employment Exception for Employee’s Right of Rebuttal 

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Massachusetts Creates At-Will Employment Exception for Employee's Right of Rebuttal

The Supreme Judicial Court of Massachusetts has recently issued a decision holding that an employer cannot terminate an employee solely as a result of choosing to file a rebuttal to be included with their personnel file. The Court found that this common law remedy was necessary in order to protect the employee’s “right of rebuttal” provided by the state’s law.

This holding results from the “right of rebuttal” provided in Mass. Gen. Laws Ann. ch. 149, § 52, which requires that an employer must provide an employee with notice any time that they will either modify or add information to an employee’s personnel file that could negatively affect the circumstances of their employment. The employee would then have the right to examine their personnel file and submit a written “rebuttal” that expresses their position on the changes. 

This must then be included in the personnel file any time that it is transferred to a third party, and the original modification remains. Compliance with this statute is enforced by the state’s Attorney General, and violations may result in small fines. However, this ruling now provides protection under the public policy exception for violations that result in termination for employees exercising the rights provided to them by this statute.

Traditionally, courts in Massachusetts have only recognized a small number of public policy exceptions to at-will employment under which an employer is prohibited from firing an employee when it would violate an established public policy. Generally, this rule has only been recognized to prevent termination of employees for acts such as serving jury duty, cooperating with official investigations, filing a claim for worker’s compensation, or simply refusing to violate the law.

In this case, however, the court found that further protection was needed for the right of rebuttal. The remedy provided by the statute is limited and does not offer a  private enforcement mechanism. By providing no remedy for employees that face retaliation or termination as a result of their rebuttal, the court noted that employers are permitted to negate the important policies the right serves.

The court further found that choosing to recognize this new exception does not significantly impact at-will employment and adds a requirement for just cause for termination of employment. A rebuttal only records an employee’s petition on an employment issue, and an employee that chooses to file a rebuttal may still be terminated for any legal reason other than for the contents or filing of a rebuttal.

Employer Takeaways

The Massachusetts Supreme Judicial Court ruling, in this case, is significant because it adds a restriction on termination for an otherwise at-will employment state. However, the effects are limited given that for an employer to comply with these requirements; they simply must have suitable justification to terminate an employee besides the employee’s choice to file a rebuttal or the contents thereof.

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