EXCEPTIONS TO THE AT-WILL EMPLOYMENT DOCTRINE

Robert S. Mantell

Rodgers, Powers & Schwartz

18 Tremont Street, Suite 500

Boston, MA 02110

617 742 7010

RMantell@TheEmploymentLawyers.com

© August 2002

The at-will employment doctrine, that an employee can be terminated for any reason or for no reason, is a doctrine whose validity is dwarfed by its numerous exceptions. Many of the exceptions to the at-will rule are open ended and susceptible to wide interpretation. For example, it is illegal to terminate employees for engaging in "concerted activity" or in violation of "public policy." These exceptions to the at-will doctrine will continue to evolve and broaden.

The list provided below shows many, but not all the illegal reasons for terminating employment. Nevertheless, the list is very long. For those thinking that the list is too long to be useful, this is an indictment of process that we currently use, which addresses the flaws the at-will employment doctrine in a piecemeal fashion. There are so many circumstances where the at-will employment doctrine is inappropriate that it is difficult even to consider them all.

When a new client enters a lawyer's office with questions about a termination, there is a danger that an unlawful motive may be overlooked. How many lawyers ask clients whether the garnishment of wages, or jury duty, could have motivated the termination? It is a scary prospect that a lawyer can not possibly inquire about the entire gamut of illegal forms of discrimination in a session. Therefore, the following list has been developed so that both clients and practitioners can flag the possible legal protections that may apply.

Illegal Reasons to Discriminate Against An Employee

Abortion--Refusal to Perform, Suggest, Assist or Conscientious Objection to	G.L. c. 112, § 12I
Aiding Others in the Enjoyment of G.L. c. 151B Rights	G.L. c. 151B, § 4(4A)
AIDS Test	G.L. c. 111, § 70f (employer may not condition employment on employee taking HTLV-III antibody or antigen tests)
Air Pollution--Reporting	See “Pollution—Air” in this Index
Age Discrimination	G.L. c. 151B, §§ 4(1B), 4(1C), 4(3); G.L. c. 93, § 103(a) (Equal Rights Act, including right to reasonable accommodation); G.L. c. 31, § 1 (civil service); G.L. c. 149, § 24A; 29 U.S.C. §§ 623(a), (b) & (c) (Age Discrimination in Employment Act); 5 U.S.C. § 2301(b)(2)
Age Discrimination—Opposing or complaining of	G.L. c. 151B, § 4(4); G.L. c. 149, § 24F; 29 U.S.C. § 623(d) (Age Discrimination in Employment Act); 42 U.S.C. § 6102 (federally assisted programs)
Airline--Safety	See "Safety--Airline" in this index
Alienage Discrimination	42 U.S.C. § 1983; see also "Citizenship" in this Index
Ancestry	See "National Origin" in this Index
Arbitrary Firing	G.L. c. 31, § 1 (civil service); 5 U.S.C. § 2301(b)(8)(A) (Federal Employees); see also "Good Cause--Lack of" in this Index
Asbestos--Reporting	G.L. c. 149, § 6D; 20 U.S.C. § 3608 (Asbestos School Hazard Detection and Control Act)
Association--Public Employees	Certain public employees may not be terminated due to political association or close personal association. See "Marital Status" and/or "Political Association" in this Index
Association With Others Within a Protected Class	One closely associated with someone within a protected category may be protected as well. Papa v. Pelosi, 17 MDLR 1467, 1472 (1995); Green v. Trepanier, 12 MDLR 1358, 1371 (1990); Luna v. Lynch, 7 MDLR 1699, 1725 (1985); Romano v. Lowell Paper Box Co., 4 MDLR 1087, 1097 (1982) (Catholic man held to be a member of protected class because his wife was Jewish); Dittbenner v. Hapco Auto Parts, Inc., 11 MDLR 1139 (1989) (complainant was protected as handicapped due to her husband’s lupus); Reich v. Cambridgeport Air Systems, 8 IER 1614, 1618 (D. Mass. 1993), aff’d 26 F.3d 1187, 1188-9 (1^st Cir. 1994) (where OSHA statute prohibits discrimination against those filing an OSHA complaint, and a worker who filed a complaint and that worker’s friend were fired based on the complaint, the friend had a cause of action against the company).
Authority--Reporting Abuse of	5 U.S.C. § 2301(b)(9)(B) (Federal Employees)
Bank--Reporting Violation of Law or Gross Mismanagement	12 U.S.C. § 1831j(a)(1); see also "Credit Union" in this Index
Benefits--Seeking Benefits, Vesting or Testifying	29 U.S.C. §§ 1140, 1141 (ERISA); see also "Wages--Compensation Earned or Almost Earned Based on Past Performance of Services"
Cancer	G.L. c. 31, § 21 (civil service); see also "Disability" in this Index
Cargo Containers--Reporting	See "Safety--Cargo Containers" in this Index
Child Abuse or Neglect--Reporting	G.L. c. 119, § 51A
Child Labor	G.L. c. 149, §§ 60-74
Citizenship Discrimination	8 U.S.C. § 1324b(a)(1)(B)
Citizenship Discrimination--Opposing	8 U.S.C. § 1324b(a)(5)
Citizenship Preference	G.L. c. 149, § 26 (public works preference for citizens of Massachusetts); G.L. c. 149, § 27E (residency preference for department of highways)
Civil Rights	G.L. c. 12, § 11H & I (interfering with constitutional rights by threats, intimidation or coercion); 42 U.S.C. §§ 1981-3 (Civil Rights Acts)
Civil Rights of Institutionalized Persons	See “Institutionalized Persons—Reporting Violations of Civil Rights” in this Index
Civil Service--Just Cause	G.L. c. 31, § 1 et seq.; G.L. c. 31A, § 1 et seq.; School Committee of Brockton v. Civil Service Commission, 43 Mass. App. 486 (1997) (school custodian could not be dismissed because he engaged in sexual act in a public park); G.L. c. 121B, § 29 (housing authority employees)
COBRA--Health Insurance Continuation Coverage	29 U.S.C. § 1161, et seq. (Federal COBRA); G.L. c. 175, §§ 110G, 110I; G.L. c. 176A, §§ 8D, 8F; G.L. c. 176B, §§ 6A, 6B; G.L. c. 176G, § 5A (Massachusetts COBRA)
Close Corporation	See "Stockholder in Close Corporation" in this Index
Collective Bargaining Activity	See "Union," "Concerted Activity" and/or "Contract--Collective Bargaining Agreement" in this Index
Color	G.L. c. 151B, §§ 4(1), 4(2), 4(3); G.L. c. 93, § 102(a); G.L. c. 31, § 1 (civil service); G.L. c. 149, § 43; 5 U.S.C. § 2301(b)(2); 42 U.S.C. §§ 2000e-2(a), (b), (c), (d), (l), (m), 3(b) (Title VII); Joseph v. Wentworth Institute of Technology, 120 F. Supp. 2d 134, 138 (D. Mass. 2000) (interpreting 24 U.S.C. § 2000d--Title VI)
Color Discrimination—Opposing or complaining of	G.L. c. 151B, § 4(4); 42 U.S.C. § 2000e-3 (Title VII)
Commissions--Seeking Proper Payment	See "Wages--Seeking Salary and Commissions" in this Index. See also "Wages--Compensation Earned or Almost Earned Based on Past Performance of Services" in this Index
Concerted Activity for Mutual Aid or Protection	29 U.S.C. §§ 157, 158(a); Meyers Industries, 268 NLRB 493, 497 (1984); see also "Union Activity" in this Index, although one need not be a union member to have the right to engage in concerted activity.
Constructive Discharge	Where employee is harassed, or employee's working conditions are changed, based on an unlawful motive, such that a reasonable person standing in the employee's shoes would feel compelled to resign. GTE Products Corp. v. Stewart, 421 Mass. 22, 34 (1995)
Conduct Not Bearing on Work Performance	5 U.S.C. § 2302(b)(10) (Federal Employees); see also "Civil Service--Just Cause" in this Index
Contract--Arbitration Provision	Shearson Hayden Stone, Inc. v. Liang, 653 F.2d 310, 312-3 (7^th Cir. 1981) (agreement to arbitrate disputes concerning discharge implies a just cause standard)
Contract--Collective Bargaining Agreement	Eastern Associated Coal Corp. v. United Mine Workers of America, District 17, 121 S. Ct. 462 (2000) (just cause provision in a collective bargaining agreement precluded firing of truck driver after second failure of drug test)
Contract--Just Cause and Due Process Protections	Goldhor v. Hampshire College, 25 Mass. App. 716, 722-3 (1988)
Contract--Lifetime or Permanent Contract	Boothby v. Texon, Inc., 414 Mass. 468, 476-9 (1993) (Massachusetts recognizes the enforceability of a contract to employ someone for life so long as work exists and the employee performs satisfactorily, if the contract is reasonably clear and the agent of the employer offering the contract has appropriate authority to bind the employer to such contracts)
Contract--Non-Competition or Restrictive Covenant	May imply requirement for just cause termination. Staidl, "The Enforceability of Noncompetition Agreements When Employment is At-Will: Reformulating the Analysis, 2 Emp. Rights and Emp. Policy J. 95 ("Employers should not be permitted to discharge covenant-bound employees except for just cause. . . . [W]hen employees enter into such covenants, they are foregoing opportunities to work for other employers in the field. If the covenant is entered into voluntarily, the employee implicitly expects job security with the present employer"); See Economy Grocery Stores Corp. v. McMenamy, 290 Mass. 549, 195 N.E. 747, 748 (1935) (restrictive covenant not enforced where employer exhibits bad faith); Light v. Centel Cellular Co. of Texas, 883 S.W.2d 642, 644-5 (Tex. 1994) (non-competition agreement not enforceable where employer provides as consideration promise of at-will employment)
Contract--Personnel Manual	O'Brien v. New England Tel. & Tel. Co., 422 Mass. 686, 690-4 (1996) (personnel manual could give employee rights beyond ordinary at will employment); Goldhor v. Hampshire College, 25 Mass. App. 716, 722-3 (1988) (personnel manual required employer to attempt to counsel employee prior to terminating the employee for poor performance)
Contract--Stock Options	See "Stock Option Agreement" in this Index
Contract--Specific Period or Year-to-Year Contract	Goldhor v. Hampshire College, 25 Mass. App. 716, 722-3 (1988) (an employment contract lasting a specific period of time may only be terminated prior to that time with justifiable cause)
Corporate Fraud--Reporting	See "Fraud-Corporate" in this Index
Credit History	15 U.S.C. § 1681m (employees must be shown credit reports relied on by employers); see G.L. c. 93, §§ 51, 53, 56, 62 (credit information inquiries limited and information must be provided to the employee); 15 U.S.C. § 1674 (garnishment of wages)
Credit Union--Reporting Violations of FCUA	12 U.S.C. § 1790b(a) (Federal Credit Union Act)
Criminal Record--Discrimination	G.L. c. 151B, § 4(9); see G.L. c. 6, § 172 (prohibitions on requiring an individual to provide criminal record, and inappropriate use of criminal record)
Criminal Record—Refusal to Provide, or to be Truthful Concerning	G.L. c. 151B, § 4(9); see Kraft v. Police Com’r of Boston, 410 Mass. 155 (1991)
Defamation	Draghetti v. Chmielewski, 416 Mass. 808, 811-815 (1994) (tort claim for superior's statement to press); Codd v. Velger, 429 U.S. 624, 637-8 (1997) (where public employee is terminated in such a manner as to be stigmatizing to her reputation, she may request a hearing to refute untrue charges against her)
Disability Discrimination	G.L. c. 151B, §§ 4(2), 4(3), 4(16); G.L. c. 93, § 103(a) (Mass. Equal Rights Act); G.L. c. 31, § 1 (civil service); 42 U.S.C. § 12112 (Americans with Disabilities Act); 29 U.S.C. §§ 793, 794 (Rehabilitation Act) (non-discrimination and affirmative action required); 5 U.S.C. § 2301(b)(2); G.L. c. 31, § 21 (civil service protection for applicants with cancer)
Disability Discrimination—Opposing or complaining of	G.L. c. 151B, § 4(4); 42 U.S.C. § 12203(a), (b) (ADA)
Disability--Hiring Preference	5 C.F.R. §§ 213.3101-99 (certain Federal Agencies may make preferential appointments of certain handicapped individuals); 5 C.F.R. 330.703(b)(4) (compulsory hiring for certain Federal Agencies of those who retired with disability but whose disability annuity has been terminated); see also O'Neill v. Healy, 7 Mass. L. Rptr. No. 16, 370 (construing civil service statute G.L. c. 32, § 8)
Disability—Request for Accommodation	G.L. c. 151B, §§ 4(4), 4(16); 42 U.S.C. § 12203(a), (b) (ADA); Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1^st Cir. 1997); Cullinane v. Massachusetts Institute of Technology, 7 Mass. L. Rptr. No. 13, 287 (October 6, 1997)
Disability—Refusing to Respond Truthfully to Job Application Questions Regarding Disability	G.L. c. 151B, § 4(16); 42 U.S.C. § 12112(d) (ADA); see Kraft v. Police Com’r of Boston, 410 Mass. 155 (1991)
Disability Retirement--Restoration to Service	G.L. c. 32, § 8 (civil service provision requiring restoration to work of disability retirees found qualified by a Regional Medical Panel)
Discrimination	This is a very broad concept. Ask yourself what type of discrimination you suspect, such as sex or race, and then look up those subjects in this index
Due Process	42 U.S.C. § 1983; Cotnoir v. University of Maine Systems, 35 F.3d 6, 11 (1^st Cir. 1994) (fair procedure must be used prior to terminating certain individuals); see also "Contract--Personnel Manual" in this Index
Employment--Interference With	G.L. c. 149, § 19 (preventing interference with employment by threat or force); Draghetti v. Chmielewski, 416 Mass. 808, 816-8 (1994) (intentional interference with contractual relations claim where defamatory statements by supervisor caused an employee to lose his job)
Encouraging Others in the Enjoyment of Rights to Non-Discrimination	G.L. c. 151B, § 4(4A) (age, race, religion, disability, criminal record, national origin, color, sexual orientation, gender); 42 U.S.C. § 12203(b) (disability)
Environment--Reporting Risk to Environment--Public Employees	G.L. c. 149, § 185
Equal Pay	See "Sex Discrimination" in this Index
Equal Protection	42 U.S.C. § 1983. Where a governmental entity treats one person differently than other similarly situated persons and there is no rational basis for the difference, this may be a violation of equal protection. Increased scrutiny of governmental action may take place where the difference is based on certain protected statuses, such as race or gender. See Willowbrook v. Olech, 120 S. Ct. 1073 (2000)
False Claims	See “Fraud—Reporting Fraud to Federal Government” in this Index
Family Medical Leave Act--Exercising or Attempting to Exercise FMLA Rights.	Hodgens v. Gen. Dynamics, Corp., 144 F.3d 151, 164 (1^st Cir. 1998); 29 U.S.C. § 2615(a)(1); 29 C.F.R. § 825.220.
Favoritism	5 U.S.C. § 2301(b)(8)(A) (Federal Employees)
Financial Reports--Reporting that Financial Institutions are Not Complying With Law Regarding	31 U.S.C. § 5328
Fifth Amendment	See "Self-Incrimination" in this Index
Fraud--Bank	See also "Bank" and "Credit Union" in this Index
Fraud--Corporate, Retaliation for Reporting	Sarbanes-Oxley Act of 2002 (requiring reporting mechanism and according whistleblower protections); 18 U.S.C. 1514A (civil action for retaliation for reporting violations); 15 U.S.C. § 78j-1(m)(4) (mechanism for filing complaints); 18 U.S.C. § 1513(e) (criminal penalty for retaliation); 18 U.S.C. § 1514 (remedy for harassment of victims or witnesses).
Fraud—Federal Government, Reports of Defrauding--Retaliation	31 U.S.C., § 3730(h) (False Claims Act)
Fraud--Massachusetts State or Local Government, Reports of Defrauding--Retaliation	G.L. c. 12, § 5J
Fraud--Misrepresentation	See "Misrepresentation" in this Index
Free Speech	See "Speech--Public Concern" in this Index
Garnishment of Wages	See "Credit History" in this Index
Gender	See "Sex" in this Index
Genetic Information	G.L. c. 151B, § 4(19); Executive Order 13145; see G.L. c. 111, § 70g
Good Cause--Lack of	Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 671 (1981) (unlawful to terminate employee without good cause, resulting in a deprivation of reasonably ascertainable future compensation based upon past services); Cort v. Bristol-Myers Co., 385 Mass. 300, 303-4 (1982)
Handicap	See "Disability" in this Index
Hazardous Substances	See "Pollution--Hazardous Substances"
Health Information--Protection Against Inappropriate Use or Disclosure	45 C.F.R. § 160.101, et seq. (Health care plans, including certain employers with self-insured health care plans or business associates of covered entities (including health care providers and health plans), may not improperly use or disclose protected health information); see also confidentiality provisions of the ADA and the Rehabilitation Act, 42 U.S.C. § 12112(d)(3)(B); 28 C.F.R. § 42.513(d); and "Privacy" in this Index
Health--Reporting Risk to Public Health--Health Care Providers	G.L. c. 149, § 187
Health--Reporting Risk to Public Health--Public Employees	G.L. c. 149, § 185; 5 U.S.C. § 2301(b)(9)(B)
Health Care Provider--Reporting Violation Posing Risk to Health or Safety	G.L. c. 149, § 187
Health Insurance Continuation Coverage	See "COBRA" in this Index
Heart Disease	G.L. c. 32, § 94 (presumed in civil service context to be acquired in the line of duty); see "Disability" in this Index
Height	G.L. c. 31, § 58 (height restrictions for certain firefighters and police officers must be validated).
Homosexuality	See "Sexual Orientation" in this Index
Housing Authority Employee	G.L. c. 121B, § 29 (certain housing authority employees get just cause protections)
Hypertension	G.L. c. 32, § 94 (presumed in civil service context to be acquired in the line of duty); see "Disability" in this Index
Illegal Conduct	See "Law--Violations of, Reporting"
Illegitimacy	42 U.S.C. § 1983
Immigration--Requiring Excessive Documentation	8 U.S.C. § 1324b(a)(6); see also "Citizenship" in this Index
Indictment of Public Employee	G.L. c. 30, § 59 (public employees' suspensions must be lifted where criminal prosecutions fail, and back pay and seniority must be restored); G.L. c. 268A, § 25 (municipal officers or employees); Brittle v. Boston, 54 Mass. App. 820 (2002) (back pay where indictment lifted, even if not on the merits)
Institutionalized Persons—Reporting Violations of Civil Rights	42 U.S.C. § 1997d
Intentional Infliction of Emotional Distress	Agis v. Howard Johnson Co., 371 Mass. 140 (1976) (summary, random and humiliating termination of waitress); however, these types of claims are often preempted by the Workers Compensation Act
Intentional Interference with Contractual Relations	See "Employment--Continued" in this Index
Investigation--Cooperating with Governmental Investigation	Flesner v. Technical Communications Corp., 410 Mass. 805, 811 (1991)
Jury Service	G.L. c. 268, § 14A; G.L. c. 234A, § 48 (right to compensation); 28 U.S.C. § 1875
Law--Asserting a Legally Guaranteed Right	Upton v. JWP Businessland, 425 Mass. 756, 757 (1997) (public policy)
Law--Doing what the Law Requires	Upton v. JWP Businessland, 425 Mass. 756, 757 (1997) (public policy)
Law--Refusing to Disobey	Upton v. JWP Businessland, 425 Mass. 756, 757 (1997) (public policy)
Law, violation of--Reporting	G.L. c. 149, § 185; 5 U.S.C. § 2301(b)(9)(A); Upton v. JWP Businessland, 425 Mass. 756, 757 (1997) (public policy)
Leave--FMLA rights	Hodgens v. Gen. Dynamics, Corp., 144 F.3d 151, 164 (1^st Cir. 1998); 29 U.S.C. § 2615(a)(1); 29 C.F.R. § 825.220.
Leave--Maternity	See "Maternity" in this Index
Leave--Reasonable Accommodation	See "Sick Leave" in this Index
Leave--Small Necessities Leave Act	G.L. c. 149, § 52D (to participate in school activities, medical and dental appointments for certain family members)
Leave--Veterans Day or Memorial Day for Veterans	G.L. c. 149, § 52A1/2
Leave--Voting	See "Voting" in this Index
Libel	See "Defamation" in this Index
Lie Detector Test	See "Polygraph Test" in this Index
Marital Status	G.L. c. 31, § 1 (civil service); 5 U.S.C. § 2301(b)(2) (Federal Employees); Roberts v. United States Jaycees, 468 U.S. 609, 617-8 (1984) (intimate human associations protected from governmental interference); 42 U.S.C. § 1983; see also "Political Association" in this Index
Maternity Leave	G.L. c. 149, § 105D; G.L. c. 151B, § 4(11A)
Medical Leave--Exercising or attempting to exercise FMLA rights	Hodgens v. Gen. Dynamics, Corp., 144 F.3d 151, 164 (1^st Cir. 1998); 29 U.S.C. § 2615(a)(1); 29 C.F.R. § 825.220
Mental Facility or Treatment—Refusal to Truthfully Provide Information Relating to Treatment in Mental Facility	G.L. c. 151B, §§ 4(9)
Migrant Workers--Exercising Rights	29 U.S.C. § 1855 (Migrant and Seasonal Agricultural Worker Protection Act); 29 U.S.C. § 1856 (no waiver of rights permitted)
Military Discrimination	38 U.S.C. § 4311(a)
Military Discrimination--Opposition to	38 U.S.C. § 4311(b)
Military Service--Reemployment Rights and Continued Benefits	38 U.S.C. § 4312-4319 (right to reinstatement, reasonable accommodation, qualification, just cause termination, benefit continuation); Lapine v. Town of Wellesley, 2001 U.S. Dist. LEXIS 5319 (D. Mass.)
Military Training	G.L. c. 149, § 52A; 38 U.S.C. § 4312
Minimum Wage	See "Wages" in this Index
Mining--Reporting Violations	30 U.S.C. § 1293 (Surface Mining Control and Reclamation Act); 30 U.S.C. § 815(c)(1) (Federal Mine Safety and Health Act)
Mismanagement--Reporting	5 U.S.C. § 2301(b)(9)(B) (Federal Employees) (including gross waste of funds)
Misrepresentation	Della Croce v. General Electric Co., 2 IER 1548, 1550 (D. Mass. 1988) (false statements inducing employee to transfer); Baker v. A.W. Chesterton Co., 8 Mass. L. Rptr. No. 18, 408, 408-9 (July 6, 1998) (false statement that plaintiff would be passed through training course, inducing the plaintiff to quit other job); Vitagliano v. The Interface Group--Massachusetts, Inc., 49 Mass. App. 1119, 2000 WL 1476091 (unpublished decision)
Motor Vehicle Safety	See “Safety—Commercial Motor Vehicles” in this Index
National Origin Discrimination	G.L. c. 151B, §§ 4(1), 4(2), 4(3); G.L. c. 93, § 102(a); G.L. c. 31, § 1 (civil service); G.L. c. 149, § 43; 5 U.S.C. § 2301(b)(2); 8 U.S.C. § 1324b(a)(1)(A) (IRCA); 42 U.S.C. §§ 2000e-2(a), (b), (c), (d), (l), (m), 3(b) (Title VII); 42 U.S.C. §§ 1981, 1983; Joseph v. Wentworth Institute of Technology, 120 F. Supp. 2d 134, 138 (D. Mass. 2000) (interpreting 24 U.S.C. § 2000d--Title VI)
National Origin Discrimination—Opposing or complaining of	G.L. c. 151B, § 4(4); 8 U.S.C. § 1324b(a)(5) (IRCA); 42 U.S.C. § 2000e-3 (Title VII)
Non-Competition Agreement	See "Contract--Non-Competition" in this Index
Nuclear Facilities	See “Safety—Nuclear Facilities” in this Index
Occupational Safety	See "Safety--Occupational" in this Index
Overtime Wage	See "Wages" in this Index
Patient Abuse--Reporting	G.L. c. 111, § 72G; Guevin v. Amick, 11 Mass. L. Rptr. No. 26, 599, 600 (July 31, 2000) (public policy)
Peonage	42 U.S.C. § 1992 (involuntary labor to liquidate debt prohibited)
Personnel File--Rights to Request Copy, Respond to Negative Materials, and Expunge False Materials	G.L. c. 149, § 52C; see also G.L. c. 151, § 15
Personnel Manual	See "Contract--Personnel Manual" in this Index
Plant Closing	G.L. c. 151A, §§ 71A, et seq.; 29 U.S.C. § 2101, et seq.
Political Association and Speech	G.L. c. 31, §§ 1, 2(b) (civil service); 42 U.S.C. § 1983; First Amendment of the U.S. Constitution; 5 U.S.C. §§ 2301(b)(2), 2301(b)(8)(A)
Polygraph Test--Refusal to Take	G.L. c. 149, § 19B; 29 U.S.C. § 2002
Polygraph Test--Reporting or Complaining of Unlawful Use	29 U.S.C. § 2002
Pollution—Air, Reporting Complaints	42 U.S.C., § 7622(a) (Clean Air Act)
Pollution--Hazardous Substances, Reporting Complaints	42 U.S.C. § 9610 (Comprehensive Environmental Response, Compensation and Liability Act)
Pollution--Mining	See "Mining" in this Index
Pollution--Solid Waste	42 U.S.C. § 6971 (Solid Waste Disposal Act)
Pollution--Toxic	15 U.S.C. § 2622 (Toxic Substances Control Act)
Pollution--Water	33 U.S.C. § 1367(a) (Federal Water Pollution Control Act); 42 U.S.C. § 300j-9(i) (Safe Drinking Water Act)
Pregnancy	G.L. c. 151B, § 4(1); G.L. c. 149, § 105(D) (maternity leave); 42 U.S.C. §§ 2000e(k), 2000e-2(a), (b), (c), (d), (l), (m), 3(b) (Title VII); see also "Leave--FMLA" and "Disability--Reasonable Accommodation" in this Index
Privacy	G.L. c. 31, § 1 (civil service); 5 U.S.C. § 2301(b)(2) (Federal Employees); G. L. c. 214, § 1B; Cort v. Bristol-Myers Co., 385 Mass. 300, 306-7 (1982) (public policy)
Promissory Estoppel	Reasonable reliance on statements to employee's detriment. See also "Misrepresentation" and "Relocation" in this Index
Psychiatric Facility or Treatment—Refusal to Truthfully Provide Information Relating to Treatment in Mental Facility	G.L. c. 151B, §§ 4(9A)
Public Accommodation	42 U.S.C. § 2000a-2 (individual may not be punished for exercising right to non-discrimination in public accommodation
Public Policy	Federici v. Mansfield Credit Union, 399 Mass. 592, 595 (1987) (unlawful to terminate employee in violation of a clearly defined public policy)
Public School Employee	G.L. c. 71, §§ 41, 42
Qui Tam	31 U.S.C. § 3729 (individual may recover for reporting fact that an entity is defrauding the Federal government); G.L. c. 12, § 5A (same for Massachusetts governmental entities); see also “Fraud—Reports of Defrauding the Government--Retaliation” in this Index
Race	G.L. c. 151B, §§ 4(1), 4(3); G.L. c. 93, § 102(a); G.L. c. 151A, § 25(e) (unemployment protection for victims of racial harassment); G.L. c. 31, § 1 (civil service); G.L. c. 149, § 43; 5 U.S.C. § 2301(b)(2); 42 U.S.C. §§ 2000e-2(a), (b), (c), (d), (l), (m), 3(b) (Title VII); 42 U.S.C. §§ 1981, 1983; Joseph v. Wentworth Institute of Technology, 120 F. Supp. 2d 134, 138 (D. Mass. 2000) (interpreting 24 U.S.C. § 2000d--Title VI)
Race discrimination—Opposing or Complaining of	G.L. c. 151B, § 4(4); 42 U.S.C. § 2000e-3 (Title VII)
Racketeering	See "Fraud" in this Index; but see Beck v. Prupis, 120 S. Ct. 1608 (2000) (RICO statute generally does not protect employee who was fired by employer in order to cover up racketeering)
Railroads--Accident Reports	45 U.S.C. § 60 (Railroad Employers Act)
Railroads--Safety	See "Safety--Railroads" in this Index
Research Misconduct	42 U.S.C. § 289b (research funded by Public Health Service)
Religion Discrimination	G.L. c. 151B, §§ 4(1), 4(2), 4(3); G.L. c. 31, § 1 (civil service); 5 U.S.C. § 2301(b)(2); 42 U.S.C. §§ 2000e-2(a), (b), (c), (d), (l), (m), 3(b)
Religion Discrimination—Opposing or complaining of	G.L. c. 151B, § 4(4); 42 U.S.C. § 2000e-3 (Title VII)
Religious Practices	G.L. c. 151B, § 4(1A); see City of Boerne v. Flores, 117 S. Ct. 2157 (1997) (invalidating Religious Freedom Restoration Act, 42 U.S.C. § 2000bb)
Religious Practices—Request for Accommodation	G.L. c. 151B, § 4(4)
Relocation	Rath, How Relocation Affects the Employment At Will Relationship, 12 The Labor Lawyer, Number 2, 207; Billings v. Dual Manufacturing & Engineering, Inc., 1991 Mass. App. Div. 166; Presto v. Sequoia Systems, Inc., 633 F. Supp. 1117 (D. Mass. 1986) (estoppel claim)
Reservists--Military	G.L. c. 149, § 52A
Residency Preference	See Citizenship Preference
Retaliation	This is a very broad concept. Ask yourself what type of retaliation you suspect, such reprisals based on complaints of race discrimination, and then look up those subjects in this index
Retirement--Protection from Involuntary Retirement of Public Employees	G.L. c. 32, §§ 16(1)(a), (b) & (c)
Retirement Plan--Public Employees	G.L. c. 32, §§ 1, et seq.
Safety--Airline	49 U.S.C. § 42121
Safety--Asbestos	See "Asbestos--Reporting
Safety--Cargo Containers	46 U.S.C. App. § 1506 (International Safe Container Act)
Safety—Commercial Motor Vehicles, Reporting Complaints	49 U.S.C. § 31105(a) (Surface Transportation Assistance Act); Clean Harbors Environmental Services v. Herman, 146 F.3d 12 (1^st Cir. 1998) (internal complaints can be protected conduct)
Safety--Health Care Providers	G.L. c. 149, § 187; Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416 (1988) (public policy)
Safety--Mining	See "Mining" in this Index
Safety—Nuclear Facilities, Reporting Complaints	42 U.S.C. § 5851(a) (Energy Reorganization Act)
Safety--Occupational, Reporting Complaints	29 U.S.C. 660(c)(1) (Occupational Safety and Health Act); 29 C.F.R. § 1977.3; see also G.L. c. 149, § 6 (persons aggrieved by employer's failure to follow AG's safety rules may file a complaint in District Court)
Safety--Railroads	49 U.S.C. § 20109 (Federal Railroad Safety Authorization Act)
Safety--Risk to Safety--Public Employees	G.L. c. 149, § 185; 5 U.S.C. § 2301(b)(9)(B)
Self-Incrimination--Fifth Amendment	Bellin v. Kelley, 435 Mass. 261, 272 (2001); Carney v. Springfield, 403 Mass. 604 (1988) (Public employees may not be terminated merely because they invoke the Fifth Amendment, although sometimes employees can be fired for refusing to ask specific questions); Garrity v. New Jersey, 87 S. Ct. 616 (1967)
Sex Discrimination	G.L. c. 151B, §§ 4(1), 4(2), 4(3); G.L. c. 93, § 102(a); G.L. c. 149, § 105A (equal pay); G.L. c. 31, § 1 (civil service); 29 U.S.C. § 206(d) (Equal Pay Act); 5 U.S.C. § 2301(b)(2); see G.L. c. 31, § 21 (civil service); 42 U.S.C. §§ 2000e-2(a), (b), (c), (d), (l), (m), 3(b); 42 U.S.C. § 1983
Sex Discrimination—Opposing or complaining of	G.L. c. 151B, § 4(4); G.L. c. 149, § 105(B) (pay disparity); 42 U.S.C. § 2000e-3 (Title VII)
Sexual Harassment	G.L. c. 151B, §§ 4(1), 4(16); c. 214, § 1C; G.L. c. 151A, § 25(e) (unemployment protection for victims of sexual harassment); 42 U.S.C. §§ 2000e-2(a) (Title VII)
Sexual Harassment—Opposing or complaining of	G.L. c. 151B, § 4(4); 42 U.S.C. § 2000e-3 (Title VII)
Sexual Orientation Discrimination	G.L. c. 151B, §§ 4(1), 4(2), 4(3); see Rosa v. Park West Bank & Trust Co., 214 F.3d 213, 215 (1^st Cir. 2000) (Federal laws may be implicated if discrimination is based on failure of plaintiff to conform with defendant's stereotyped view of how genders should act, as opposed to discrimination based on sexual orientation)
Sexual Orientation Discrimination—Opposing or complaining of	G.L. c. 151B, § 4(4)
Sick Leave--Exercising or attempting to exercise FMLA rights	Hodgens v. Gen. Dynamics, Corp., 144 F.3d 151, 164 (1^st Cir. 1998); 29 U.S.C. § 2615(a)(1); 29 C.F.R. § 825.220.
Sick Leave--As Reasonable Accommodation for Handicap	Criado v. IBM Corp., 145 F.3d 437, 443-4 (1^st Cir. 1998); G.L. c. 151B, § 4(16)
Speech--Public Concern	42 U.S.C. § 1983 (enforcing First Amendment protections); Pereira v. Commissioner of Social Services, 432 Mass. 251 (2000); 5 U.S.C. § 2301(b)(2)
Stockholder in Close Corporation	A minority shareholder in a close corporation with an employment contract is protected not only by the explicit terms of the contract, but also by an implied covenant for the utmost good faith and loyalty. King v. Driscoll, 424 Mass. 1, 3 (1996); Blank v. Chelmsford Ob/Gyn, 420 Mass. 404, 408 (1995); Donahue v. Rodd Electrotype Co. of New England, Inc., 367 Mass. 578, 586-587 (1975).
Stock Option Agreement	An employee's stock option agreement may contain provisions according the employee certain rights if terminated without cause
Stock Repurchase Agreement	King v. Driscoll, 418 Mass. 576 (1994) (damages for wrongful termination include losses resulting from premature repurchase of stock from employee based on otherwise valid, and unbreached stock repurchase agreement)
Subpoena for Criminal Action--Responding to	G.L. c. 268, § 14B
Takeover Laws	G.L. c. 149, § 183; but see Simas v. Quaker Fabric Corp., 6 F.3d 849 (1^st Cir. 1993) (tin parachute law preempted by ERISA); G.L. c. 149, §20E
Teacher	See "Public School Employee" in this Index
Tenant Complaint	G.L. c. 186, § 18; Mogilevsky v. Keating, 11 Mass. L. Rptr. No. 15, 332, 334 (May 15, 2000).
Union Activity or Testifying	G.L. c. 150A, §§ 4, 4A; G.L. c. 150E, § 10; G.L. c. 149, § 19C; 29 U.S.C. § 158(a)
Vehicle Safety	See “Safety—Commercial Motor Vehicles” in this Index
Veteran Discrimination	38 U.S.C. § 4311(a)
Veteran Discrimination--Opposition to	38 U.S.C. § 4311(b)
Veteran--Leave for Veterans Day or Memorial Day	See "Leave--Veterans Day" in this Index
Veteran Preference	G.L. c. 149, § 26 (public works); 38 U.S.C. § 4212, 4214; 5 U.S.C. § 2302(b)(11); see also Military Service--Reemployment Rights
Voting	G.L. c. 56, §§ 32, 33 (prohibiting influence of employee's votes); G.L. c. 149, § 178 (right for leave to vote); G.L. c. 56, § 37 (influence of referendum); 5 U.S.C. §§ 2301(b)(2), 2301(8)(A)
Wages--Compensation Earned or Almost Earned Based on Past Performance of Services	Fortune v. National Cash Register Co., 373 Mass. 96, 104-5 (1977) (termination to avoid paying commissions)
Wages--Employment Benefits	See "Benefits--Seeking Benefits or Vesting" in this Index
Wages--Garnishment	See "Credit History" in this index
Wages--Prevailing--Public Works	G.L. c. 149, § 26, 27, et seq.
Wages--Seeking Minimum Wage or Overtime Wage	G.L. c. 151, §§ 19(1), (4), (5); 29 U.S.C. § 215(a)(3) (Fair Labor Standards Act)
Wages--Seeking Salary and Commissions	G.L. c. 149, § 148A. But see G.L. c. 154, § 8, limiting coverage of G.L. c. 149, § 148 to payments other than deduction from wages for the purpose of paying union dues, repayment of loans, purchase of stock, etc.
Water	See "Pollution--Water" in this Index
Weingarten--Requesting a Witness at an Investigative Conference with an Employer	Epilepsy Foundation of Northeast Ohio, 331 NLRB 92 (2000) (applying rule to non-unionized employees)
Whistleblowing	This is a very broad concept. Ask yourself what type of whistleblowing is applicable, such as reporting fraud, pollution or safety problems, and then look up those subjects in this index. See also "Law, violation of--Reporting"
Wiretapping	Unlawful to use illegally intercepted communication to discipline a subordinate. See Bartnicki v. Vopper, 121 S. Ct. 1753 (2000), citing Dorris v. Absher, 959 F. Supp. 813, 815-7 (M.D. Tenn. 1997), aff'd in part, rev'd in part, 179 F.3d 420 (6^th Cir. 1999).
Witness or Victim--Criminal Trial Participation	G.L. c. 268, § 14B; G.L. c. 258B, § 3(j); Haddle v. Garrison, 119 S. Ct. 489 (1998) (42 U.S.C. § 1985(2) interpreted to prevent an employer from retaliating against an employee for testifying at a criminal trial or for attending grand jury proceedings)
Witness--Requesting a Witness at an Investigative Conference with an Employer	See "Weingarten" in this Index
Work-Related Injury	G.L. c. 152, § 75B(1)
Work-Related Injury--Right to Reasonable Accommodation	G.L. c. 152, § 75B(1)
Workers Compensation--Rehiring Preference	G.L. c. 152, § 75A
Workers Compensation--Seeking Rights or Testifying	G.L. c. 152, § 75B(2); 33 U.S.C. § 948a (Longshore and Harbor Workers' Compensation Act)

checklist2