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 (1st 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 (7th 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 (1st 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 (1st 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 (1st 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