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Volume XII, Number 142


May 20, 2022

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Massachusetts SJC Finds a Public Policy Exception to Employment At Will Under the State Personnel Records Law

Last week, the Supreme Judicial Court of Massachusetts (“SJC”) unanimously ruled that the state Personnel Records Law, M.G.L. c. 149, § 52C, provides for a public policy exception to employment at will. Writing on behalf of the full panel in Meehan v. Medical Information Technology, Inc., SJC-13117 (Dec. 17, 2021), Justice Kafker held that an employer cannot terminate an at-will employee for exercising his statutory right to file a rebuttal for inclusion in his personnel file, as doing so would constitute wrongful discharge in violation of public policy. This decision provides a significant addition to the list of narrow exceptions to the general rule of employment at will, and is sure to impact the way employers communicate and document personnel issues.

The Personnel Records Law

The Massachusetts Personnel Records Law, M. G. L. c. 149, § 52C, requires employers to inform employees within ten days of any information added to their personnel record that “negatively affect[s] the employee’s qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action.”

If there is a disagreement between the employer and employee about any information contained in the personnel record, they may agree to correct or remove such information. If an agreement cannot be reached, the employee may prepare a written statement to rebut the contested information. Such a rebuttal will remain a part of the employee’s personnel record.

The Decision

In Meehan, the SJC held that the statutory right of rebuttal provided by the Personnel Records Law is a legally guaranteed right of employment, and therefore, termination for exercising this right fits into the public policy exception to the doctrine of employment at will. In so holding, the court noted that the state legislature, in enacting the statutory employment right, has already concluded that the right is a matter of public significance.

The SJC also analyzed the law’s remedial scheme, noting that the statute does not address remedies for retaliation and termination for exercise of the right of rebuttal. In order to remedy the legislature’s failure to consider the possibility of an employer terminating an employee for exercising this right, the court concluded it would be appropriate to recognize a common-law wrongful discharge action for the termination of an at-will employee for exercising his/her right(s) under the statute.

At the end of its analysis, the court reiterated that an employer “remains free to terminate the employee for any reason or no reason so long as the employer does not terminate the employee for filing the rebuttal itself” and noted that the rebuttal does not provide any additional rights.

Employer Takeaways

This decision dramatically underscores the critical importance of vigilantly practicing good human resources fundamentals, including regular documentation and communication concerning personnel issues and performance concerns. In addition, should an employee exercise his or her right to place a rebuttal in a personnel file, employers should exercise caution and consult with counsel before taking subsequent adverse action following such rebuttal.

©2022 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XI, Number 356

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Greg Keating Employment Litigator Epstein Becker Green Law Firm

Greg Keating’s top-notch skills in and out of the courtroom have won him the respect of employers. He is both a trusted advisor on a panoply of employment issues and a much sought-after whistleblower defense attorney. Greg also defends employers in a wide range of other employment disputes. He draws on more than 25 years of experience as a litigator and employment lawyer to help clients successively resolve their workplace issues.

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Employers seek Greg’s daily advice on every type of employment issue. He also regularly advises a substantial...

Alicia Maziarz Employment Attorney Epstein Becker Green Boston

Alicia Maziarz helps employers resolve their labor and employment disputes. She assists in defending them in cases involving allegations of discrimination and harassment, wage and hour class actions, and unfair competition matters, in federal and state courts and before city, state, and federal government agencies. Employers also seek Alicia’s assistance with developing and revising their procedures and policies, including employment policies and employee handbooks. Additionally, Alicia advises employers on compliance with wage and hour laws, harassment and...