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

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.