The Public Policy Exception To The Employment at Will Doctrine Under Massachusetts Law: Reporting Health and Safety Violations

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As an employment lawyer, I am often asked by clients about exceptions to the traditional employment at will doctrine. Generally speaking an employer may terminate an employee who does not have a written employment contract for cause, no cause, or any reason at all. The major well-known exception to this rule is where the employer’s termination decision violates anti discrimination laws. A lesser-known exception to this rule is where the where the termination would violate well established public policy. See Holden v. Worcester Housing Authority, No. 93-1508, 1995 Mass. Super LEXIS 518 at * 3-5 (Mass. Super, July 24, 1995) (“…liability may befall an employer who terminates an at-will employee in violation of a “clearly established public policy.”) quoting Hobson v. McLean Hospital Corp., 402 Mass. 413, 416 (1988).

The majority of states including Massachusetts prohibit an employer from terminating an employee at-will for filing a worker’s compensation claim, serving on a jury, or for refusing to do what the law forbids, such as committing perjury. See Smith-Pfeffer v. Superintendent of Walter E. Fernald State School, 404 Mass. 145, 149-50 (1989) (“[r]edress is available for asserting a legally guaranteed right (e.g., filing a worker’s compensation claim) for doing what the law requires (e.g., serving on a jury or refusing to do what the law forbids (e.g. committing perjury).”).

Massachusetts has also implemented a whistleblower statute which prohibits public employers from taking adverse action against their employees for reporting activity which the employee reasonably believes violates the law or poses a risk to the public health, safety or environment. See M.G.L. c. 149, § 185. The statute defines a “public employer” as the “Commonwealth, and its agencies or political subdivisions, including, but not limited to, cities, towns, counties and regional school districts, or any authority, commission, board or instrumentality thereof.” Id.

The question then becomes what protections exist for employees of private companies? The short is answer is that employees of private companies may be entitled to similar protection. Significantly, the Superior Court noted in the Holden case “…, it may be a violation of public policy to terminate an employee for doing what the law encourages, even if the activity is not specifically required by law.” Holden supra at * 4-5 citing Flesner v. Technical Communications Corp., 410 Mass. 805, 810 (1991) (“…legal redress [is available] in certain circumstances for employees terminated for performing important public deeds, even though the law does not absolutely require the performance of such a deed.”). See also e.g., Boaster v. Enzyme, No. CV201100131, 2011 Super Lexis 250 at *10 (Mass. Super. October 5, 2011) (allowing employee’s common-law wrongful discharge claims to proceed against an employer and stating that “[a]n at will employee may not be terminated for reporting conditions that the employee reasonably and in good faith believes violate public safety laws and present a danger to public safety.”).

Management distributes personnel manuals because it is thought to be in its best interests to do so. Such a practice encourages employee security, satisfaction, and loyalty and a sense that every employee will be treated fairly and equally. Management expects that employees will adhere to the obligations that the manual sets forth. Courts recently have been reluctant to permit management to reap the benefits of a personnel manual and at the same time avoid promises freely made in the manual that employees reasonably believed were part of their arrangement with the employer. Management voluntarily offers, and defines the terms of, any benefit set forth in its unbargained for personnel manual. The employees may have a reasonable expectancy that management will adhere to a manual’s provisions. ‘Without minimizing the importance of its specific provisions, the context of the manual’s preparation and distribution is, to us, the most persuasive proof that it would be almost inevitable for an employee to regard it as a binding commitment, legally enforceable, concerning the terms and conditions of his employment.’


Id. (internal citations omitted).

A employer decision to retaliate against an employee for reporting violations of health and safety laws could be found to not only violate public policy but could also violate the express terms of the Company’s Employee Handbook or Personnel Manual, and as such, could subject the employer to a wrongful discharge claim.

Appellate Decision: New Faith v. Pizziferri

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A breach of contract action in which McKenzie & Associates, P.C. represents the Plaintiff, New Faith Missionary Baptist Church. The church contracted with the Defendant, Joseph Pizziferri, to purchase land owned by him. At the time the parties entered into a purchase and sale contract, the Defendant informed the Plaintiff that the church would be purchasing the building on the land and the land to the right of and behind the building. Upon seeking to refinance the mortgage on the property purchased from the Defendant, the church was informed by the lender that it only purchased the land with the building on it and nothing more. The church commenced a lawsuit against the Defendant concerning his fraudulent actions and misrepresentations. The matter was eventually presented to the Court of Appeals which entered a decision in favor of the Plaintiff on February 23, 2012, stating that the Defendant’s “fraudulent misrepresentation was obvious.” This decision from the Appellate Court is critical to the church’s case because it reversed the prior decision of the Suffolk Superior Court which found in favor of the Defendant and dismissed the church’s case.

Superior Court Ruling: Spoliation of Evidence

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McKenzie & Associates was retained by a housing management company in its lawsuit against a construction law firm for negligently representing the management company and engaging in fraudulent billing practices. The construction law firm asserted counterclaims against the management company, seeking over $200,000 in alleged unpaid legal fees. McKenzie & Associates successfully established that the defendant law firm and its principal spoliated evidence when it failed to retain the electronic information associated with its client billing system. Spoliation of evidence is the negligent destruction, withholding, or altering of evidence. The Suffolk Superior Court entered a default judgment in favor of the management company and dismissed the defendant’s counterclaim for unpaid legal bills.

G.L.c. 190B: Massachusetts Adopts Uniform Probate Code

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As of April, 2012, the Massachusetts Legislature has enforced the new Massachusetts Uniform Probate Code which has changed the traditional schemes through which the real and personal property of a deceased individual is transferred to their heirs at law. Individuals who presently have a Will are encouraged to meet with their attorneys to ensure that their estate plans meet their present wishes. Individuals who do not have Wills are now urged to prepare one given the changes in the law with regard to who is considered an heir and who is not. A Will or other transfer instrument (like a trust) is an individual’s best vehicle for ensuring that their final wishes are carried out accordingly and that their loved ones will be cared for. Having maintained a long-standing probate and estate planning practice, our firm understands the difficulty in confronting the possibility of death. However, we have and continue to advise our clients that it is best to prepare for the unthinkable especially when one has family or other dependents. If you believe you need to speak to someone about creating an estate plan or revising an existing one, please contact Attorney Denzil McKenzie or Attorney Chaz Okagbue.

Denzil McKenzie Appointed Honorary Consul of Jamaica at Boston

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O’Neil Baugh, Deputy Prime Minister and Minister of Foreign Affairs and Foreign Trade appointed Attorney Denzil D. McKenzie to the post of Honorary Consul of Jamaica. In his role as Honorary Consul, Mr. McKenzie will I will be the local representative of the Jamaican Government and will assist with trade and investments inquiries, passports, visas, issues involving the immigration status of Jamaicans and other matters affecting the Jamaican community.

“This is a great honor and I look forward to continuing my service to Jamaica as its Honorary Consul for Boston. This will be a demanding assignment and I look forward to the challenges that lie ahead”, says Mr. McKenzie who is the founder and Managing Partner of McKenzie & Associates, PC, one of the oldest African American law firms in Boston.

Mr. McKenzie is a native of Montego Bay, Jamaica’s second largest city. Jamaica is a vibrant democratic nation situated in the Caribbean. It is member of the Commonwealth of Nations. Jamaica achieved its independence from the United Kingdom in 1962. The capital and commercial center is Kingston. The United States is one of Jamaica’s largest trading partners.

As Honorary Consul, Mr. McKenzie hopes to further strengthen the links between Jamaica and New England in such the areas as economic development, trade, and culture.
Mr. McKenzie succeeds Dr. Kenneth Guscott who served in the post since 1992.

A successful business and trial attorney, Mr. McKenzie began his legal career as an Assistant Attorney General for the Commonwealth of Massachusetts. He is a graduate of the University of Massachusetts at Amherst and Boston University School of Law. In November of 2004, Boston Magazine named Mr. McKenzie to the list of Massachusetts “Super Lawyers.” Today Mr. McKenzie maintains an active practice in the areas of business law, civil litigation, and probate and estate planning.

The office of the Honorary Consul will be housed at 183 State Street, Suite 6, Boston, Massachusetts 02109. The telephone number of the Consulate is: (617)-778-0021 and 0022.