On December 17, 2021, the highest court in the state of Massachusetts ruled that an employer cannot terminate an employee solely for exercising their right to file a rebuttal to be included in their personnel file. The Supreme Judicial Court held that this new common law remedy is necessary to fully protect this legal right and to “complete the remedy regime”. See Meehan v. Med. Info. Tech., Inc., # SJC-13117, 2021 WL 5990887 (December 17, 2021).
The court also said that an employee cannot be fired just for what is written in his rebuttal, assuming it is intended to explain the employee’s position regarding a disagreement over his employment record, no matter what. how “intemperate and contentious” it can be (unless it includes physical threats or other “serious” responses).
This exploitation is based on the Massachusetts “right of rebuttal” in Mass. Gen. Laws Ann. ch. 149, § 52. According to this law, an employer must inform an employee whenever the employer changes or adds information to an employee’s personal file that may adversely affect his employment situation. The employee then has the right to consult his personal file and submit a written statement explaining his position on the changes. This “rebuttal” must then be included in the personal file each time it is transferred to a third party (as long as the original modification remains). The law is enforced by the Attorney General, and employers can face small fines for non-compliance. This decision adds a new common law remedy, through the public order exception to employment at will, for any employee dismissed solely for having exercised rights under this law.
In general, Massachusetts courts recognize a public policy exception limited to employment at will: an employee cannot be terminated contrary to well-defined public policy. This exception has always been interpreted narrowly and has traditionally been recognized to protect employees for things such as filing workers’ compensation claims, serving on juries, cooperating in a criminal investigation, or denying to break the law. See Meehan v. Med. Info. Tech., Inc. at * 2.
In Meehan, the Court concluded that the statutory right of rebuttal requires additional protection of the common law as a public policy exception to use at will. The remedy provided for by law is not exhaustive and does not include a private enforcement mechanism. It was not designed to protect an employee from dismissal or retaliation. The Court noted that not offering recourse to an employee victim of reprisals or dismissed for having exercised his right of rebuttal would be “to put a finger in the eye of the legislature” and would allow any employer to effectively cancel the ” important policies served by the right of rebuttal. See Meehan v. Med. Info. Tech., Inc. at * 5.
The Court held that recognition of this new exception does not effectively terminate employment at will and does not create a just cause requirement to terminate Massachusetts employees. A rebuttal under GL v. 149, § 52 simply memorizes the position of an employee; it does not provide for any other right or protection of employment. An employee who has filed a rebuttal may be terminated for any other legal reason, as long as it is not for filing a rebuttal itself or for its contents.
Furthermore, unlike the lower courts, the Supreme Judicial Court did not consider whether the right of rebuttal is important or whether it concerns only internal matters; instead, the court ruled that by making it a statutory right, the legislature had already determined that the law was a matter of public importance. The Court finds that the accuracy of a personal file is very important to current and future employment, as it ensures that employees will be fairly assessed by new employers (although it should be noted that employers rarely, if not never, a copy of an employee’s personal file to future employers, so this justification rings hollow). The court ruled that this right also allows an assessment of an employer’s legal compliance with such things as workplace safety, wage and schedule laws and discrimination.
As a result of this ruling, Massachusetts employers firing an employee who has filed a rebuttal must ensure they have sufficient reason to terminate the employee regardless of the rebuttal or its contents.
© 2021 Proskauer Rose LLP. Revue nationale de droit, volume XI, number 355