Massachusetts employers now have another issue to worry about when preparing to terminate an employee: whether the employee has submitted a written statement “rebutting” information in their personnel file. In December 2021, the highest court in Massachusetts ruled that an employee cannot be terminated for exercising this right because it falls within the “public policy” exception to the “at will” rule.
Personnel Records Law
As many Massachusetts businesses know, an employee must be notified of information placed in their personnel file that may negatively affect the terms and conditions of their employment. M.G.L. c. 149, § 52C. The employee must be notified within 10 days of the information being placed in the file. Upon written request, the employee must be allowed to review their personnel file within five business days. A copy of the file must also be provided within five business days of the employee’s written request for it.
A “personnel record” is one that identifies the employee and may affect their employment circumstances. At a minimum, it includes:
- The employee’s name, address, and date of birth;
- Job title and description;
- Start date;
- Job application, resumes and other information submitted to the employer in response to the Job posting or ad;
- Rate of pay and any other compensation;
- All performance evaluations, including self-evaluations, written warnings, probationary periods, waivers, and dated termination notices; and
- All other documents regarding discipline of the employee.
If there is disagreement regarding any information contained in a personnel file, removal or correction of the information can be mutually agreed upon by the employer and employee. If no agreement is reached, the employee has the right to submit a written statement explaining the employee’s position with respect to the disagreement. The statement must be included in the employee’s personnel file.
The Public Policy Exception To The ‘At Will’ Rule
Massachusetts, like most states, presumes that the employment relationship is “at will.” This means that either the employer or employee can terminate the relationship at any time for any reason – or no reason at all. Under these circumstances, the employee has no reasonable expectation to continue employment and no entitlement to any specific period of employment.
Massachusetts law recognizes an exception to this rule when an employee is terminated contrary to a “well-defined” public policy. The courts have narrowly construed this exception to avoid transforming the “at will” rule into one requiring just cause for termination. The exception has been recognized when an employee is terminated for:
- Asserting a legally guaranteed right (e.g., filing a worker’s compensation claim);
- Doing what the law requires (e.g., jury duty or enforcing safety laws);
- Refusing to do what the law forbids (e.g., committing perjury); and
- Performing important public deeds, even though the law does not absolutely require them (e.g., Cooperating with a criminal investigation or filing a complaint of illegal activity).
The public policy is often grounded in a statute passed by the legislature.
Protection of Right To Rebut Information In Personnel File
Massachusetts courts have expanded this exception by recognizing that an employee may not be terminated solely for what is written in a rebuttal statement related to information in their personnel file. The statement must explain the employee’s position with respect to a disagreement on information in the file. Even if the rebuttal is “intemperate or contentious,” its submission is protected, so long as it does not include threats of violence, abuse or “egregious” remarks.
The decision gives new teeth to Massachusetts’ personnel records law. The law is enforced by the Massachusetts Attorney General’s Office, and the penalty for violations is a fine of between $500 and $2,500. Now, employers who terminate an employee that has recently submitted a rebuttal statement face some risk that the employee could argue that termination was made because of the rebuttal. These situations may arise frequently, given that negative information in a personnel file routinely precedes a termination. Employers who wish to terminate such an employee should ensure there is a justifiable and well-documented reason to terminate the employee irrespective of the rebuttal. An at-will employee who filed a rebuttal can, of course, be terminated for any other legal reason. That reason should just be clear and not linked to the rebuttal statement.
Catherine M. DiVita, Esq., is an employment law attorney at the Boston law firm of Conn Kavanaugh Rosenthal Peisch & Ford LLP. Feel free to send questions to firstname.lastname@example.org.
This column, which may be considered advertising under the ethical rules of certain jurisdictions, is intended as a general discussion of the topics covered, and does not constitute the rendering of legal advice or other professional advice by Conn Kavanaugh Rosenthal Peisch & Ford LLP or its attorneys.