Home Employers Beware: M.G.L c. 149, § 52C Right to Rebut Trumps At-Will Employment

Employers Beware: M.G.L c. 149, § 52C Right to Rebut Trumps At-Will Employment

By Alexis P. Theriault, Esq., Business Litigation, Insurance & Employment Attorney at Conn Kavanaugh Rosenthal Peisch & Ford, LLP

Massachusetts law gives employees the right to submit a written statement explaining the employee’s position when the employee disagrees with any information contained in the employee’s personnel record. This written statement becomes part of the employee’s personnel record. Given the importance of personnel records to employers when making employment decisions, the rebuttal statement provides an opportunity for the employee to create a complete record of his employment. But does exercising that statutory right of rebuttal protect an at-will employee from termination? In the recent case of Meehan v. Medical Information Technology, Inc., the Supreme Judicial Court held that it does.

In Meehan the employer put Meehan on a performance improvement plan. Pursuant to M.G.L. c. 149, § 52C, he wrote a lengthy rebuttal to the plan and statements made in it. The same day, his employer terminated him after management reviewed the rebuttal. Meehan then filed suit claiming that he had been terminated in violation of public policy.

Massachusetts recognizes that, in general, employment at will can be terminated for any reason or for no reason. Courts have recognized limited exceptions to this general rule when an employee is terminated contrary to a well-defined public policy. This public policy exception is narrowly construed to avoid converting the general at-will rule into a rule that requires just cause to terminate an at-will employee. Examples include asserting a legally guaranteed right (e.g., filing a worker’s compensation claim), doing what the law requires (e.g., serving on a jury), and refusing to do what the law forbids (e.g., committing perjury). Significant to the trial court and the intermediate appellate court who dismissed Meehan’s suit, courts have refused to extend the public policy exception to internal matters of an organization.

Meehan brought his claim as a violation of public policy, because G.L. c. 149, § 52C does not create a statutory remedy when an employee is terminated for submitting a rebuttal. The statute provides a limited remedy for violating the act—a fine between $500 and $2,500—but does not address termination or retaliation for exercise of the right to rebut. Given this limited remedy and that the SJC concluded that the right to rebut was a public policy employment right, the SJC held that a common-law wrongful discharge action exists when an employer terminates an employee who exercises his right to rebut.

Does this mean that an employee can write whatever he wants in “rebuttal” to something an employer puts in his personnel record and be protected from termination? Probably not. The SJC left for another day the assessment of what rebuttal statements may be protected, but it did provide some general guidance. So long as the rebuttal is directed at explaining the employee’s position regarding his disagreement with the information contained in his personnel record, submitting the rebuttal will be protected “no matter how intemperate and contentious the expression in the rebuttal.” Protection from termination; however, will not extend to threats of personal violence, abuse, or similarly egregious responses if they are included in the rebuttal.

The Massachusetts personnel record law has created a minefield for employers and the SJC’s Meehan decision adds another. Employers with questions about how to comply with G.L. c. 149, § 52C should contact one of Conn Kavanaugh’s experienced employment lawyers.

Attorney Theriault can be reached at atheriault@connkavanaugh.com

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