May 24, 2022

Volume XII, Number 144

Advertisement
Advertisement

May 23, 2022

Subscribe to Latest Legal News and Analysis

Massachusetts Employers Cautioned Regarding Performance Review Rebuttals

The Massachusetts Personnel Records Law, M.G.L. chapter 149, § 52C gives employees the right to submit written rebuttals to any negative information contained in a personnel file if the employee truly disagrees with the content of the information. The written rebuttal then becomes a permanent feature of the employee’s personnel file.  Several questions about this process arose recently, specifically:

  1.  Can a Massachusetts employer lawfully fire an employee merely for exercising that statutory right?

And, if not:

  1.  Will the rebuttals insulate employees against legitimate terminations for poor performance?

  2.  How do you determine whether the termination is for exercising the right to rebuttal, versus a legitimate termination due to the offensive contents of the rebuttal?

On December 17, 2021, the Supreme Judicial Court (“SJC”) for the Commonwealth of Massachusetts answered the first question in the negative, explaining that allowing employers to terminate employees in retaliation for the statutory right amounts to “sticking a finger in the eye of the legislature.”  Meehan v. Meditech Info. Tech., Inc., SJC-13117, 2021 WL 5990887, *5 (Dec. 17, 2021) (“Meditech”). As to the second and third questions, the SJC’s open-ended responses give employers cause for concern.

This case arose following Meditech’s termination of at-will employee Terence Meehan. Id. at *5. Shortly following a reorganization at Meditech, Meehan’s performance began to suffer. Meehan and Meditech disagreed about the extent to which his poor performance was caused by the reorganization. Id. When Meditech placed Meehan on a performance improvement plan (“PIP”), Meehan submitted a lengthy rebuttal complaining that the PIP was unfair. Id.

Though the record does not reflect the actual contents of the rebuttal, they were clearly unacceptable to Meditech, which terminated Meehan’s employment after meeting to discuss the rebuttal. (Meditech executives also discussed one other incident involving Meehan, but that incident was ignored for purposes of the motion to dismiss. See id., at n.3.)

Meehan then sued Meditech, arguing that the right of rebuttal contained in the Personnel Records Law afforded a public policy exception to the rule that at-will employees may be fired “for any reason or no reason.” Id. at *2. Meditech filed a motion to dismiss, arguing that such an exception would cause judges to become “super personnel departments.” Id. at *5. Meditech won its motion to dismiss at the trial court and appellate court levels, before Meehan appealed the case to the SJC. Id.

In overturning the previous decisions on the basis of legislative intent, the SJC said that rebuttals would not insulate employees from legitimate terminations.  Id. at *5.  The SJC analogized that an employee given a negative review for poor attendance could still be fired if poor attendance continued regardless of whether a rebuttal was fired. Id.  Conversely, the SJC said that if the poor attendance did not continue but the employee was terminated after firing a rebuttal, then the termination may not be lawful. Id. at n.8. This formulation may give rise to pretext claims, which employers should be prepared to meet head-on if employees are fired shortly after filing performance review rebuttals.

The SJC also addressed situations in which the contents of the rebuttal, rather than the fact of the rebuttal itself, might give rise to termination.  Concerningly, the SJC explained that “where emotions inevitably run high, 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’ . . . no matter how intemperate and contentious the expression in the rebuttal.”  Id. at *6 (emphasis added).  The SJC drew the line at “threats of personal violence, abuse, or similarly egregious responses if they are included in the rebuttal.” Id.  As a result, employers now must carefully parse the line between “intemperate and contentious” and abusive if they expect to take disciplinary action on the basis of a personnel record rebuttal.  See id.

Following Meditech, Massachusetts employers are advised to seek assistance of counsel before terminating employees who have submitted written rebuttals in connection with the Personnel Records Law.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XII, Number 4
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Christopher Pardo Employment Lawyer Hunton Andrews Kurth
Partner

Chris focuses his practice on the defense of complex employment cases in federal and state courts, arbitration, and before administrative agencies.

He represents a broad range of clients in employment, contractual, and labor matters, particularly in the defense of class and collective actions; complex wage and hour issues; trade secret litigation and restrictive covenant agreements; matters involving race, sex, age, disability, and pregnancy discrimination; wrongful termination; ERISA; RICO; and various state law claims, including wage and discrimination claims under the...

617 648 2759
Elizabeth L. Sherwood Labor Lawyer Hunton Andrews Kurth Law Firm
Associate

An experienced litigator and problem-solver, Beth’s practice encompasses all aspects of labor and employment litigation, advice and counseling.

With a broad knowledge-base and deep experience in education-industry litigation and counseling, Beth has successfully represented clients in state and federal court, as well as in administrative proceedings and government investigations. During the early days of the pandemic, Beth focused her practice on policy development designed to mitigate risk for employees and the general public, while supporting clients’ individual business needs...

617-648-2753
Advertisement
Advertisement
Advertisement