Employment Termination

Employment At Will and its Limits

Massachusetts, like many other states, is an at-will employment state. This means that, in general, an employee can be fired for a good reason, a bad reason, or no reason at all.  This also means that, contrary to popular belief, there is no legal requirement that an employer use warnings or “progressive discipline” before terminating an employee, or even that the results of an investigation that lead to termination must be fair, reasonable or correct.

There are important exceptions to this rule, however, which are described below.  If you are facing a job termination, or considering terminating an employee, it is important that you understand these exceptions, as well as some of the other obligations an employer has on termination.
Employment Contracts
​Most employees are at will, but sometimes there is an employment contract that limit the employer's ability to terminate employment.  These can be individual employment contracts (most common for executive or professional employees) or collective bargaining agreements if you are a member of a union.  The terms of these agreements will define whether a termination is lawful or not, which you should review with an employment lawyer.

If you have an individual employment contract and are facing a termination, things you should look for in your contract are whether there is a specific term of employment in terms of time, whether there are provisions that specify different rights if terminated "for cause" or "without cause; and whether there are any promises with respect to severance benefits.  You should also check to see if there are any non compete provisions in your contract, and specifically ask human resources if there is such an agreement if you don't see it in your main contract.  Especially for people who have been with the same company for many years, often there is a non compete that was signed long ago, stashed away in an HR file, and completely forgotten about.  This is information you will need to know as you think about your next steps and how to handle the termination.

If you are a member of a union (collective bargaining unit), you should review the terms of your union contract as soon as possible.  Not only are there often specific procedures related to termination in those agreements, but also procedural requirements and time limits for grievances under the contract, which means you could lose your rights under the contract if you don't follow those procedures.  Your union should have someone available to help you with the grievance process.  Things like employment discrimination and retaliation are rights you have under the law, outside of your contract, and can generally be raised without the contractual grievance process.
Employment Discrimination
Despite an employer’s right to terminate for any reason or no reason at all, federal and state law prohibit discrimination in employment, or making such a decision based on a person’s membership in a protected class.  "Protected Classes" include gender, race, ethnicity, religion, disability, sexual orientation, gender identity and more.  You can read more about protected classes under federal and Massachusetts discrimination laws.  This does not mean that an employee who is in a protected class cannot be terminated or disciplined in appropriate circumstances.  It does mean that, unlike a pure employment "at will" situation, the employer will need to demonstrate a legitimate reason for the job action that is not discriminatory in nature or intent.

If you think you may have been discriminated against, it is important to see an employment lawyer as soon as possible.  The statute of limitations for initiating an employment discrimination case is much shorter than for many other types of cases (in Massachusetts 300 days, or approximately 10 months).
Retaliation
It is also unlawful to fire an employee in retaliation for engaging in certain activities protected under the discrimination laws.  Examples of protected activity:As long as the activity was done in good faith (meaning the employee had a reasonable belief that their complaint had merit), they are protected from retaliation even if the complaint is found to be unsupported.  If you are an employer and someone has raised a question about harassment or discrimination in your business, it is important to seek the advice of an employment lawyer as early as possible to make sure the complaint is handled appropriately.

A case of retaliation for reporting discrimination or harassment follows the same procedural rules as an employment discrimination claim, and must be filed with either the Massachusetts Commission Against Discrimination or the federal Equal Employment Opportunity Commission within 300 days (approximately 10 months) of the adverse action.
Other Unlawful Forms of Retaliation
There are other activities unrelated to discrimination that are protected under Massachusetts law.  These include:
  • Exercising a right under the Workers Compensation statute;
  • Doing something required by law (i.e., missing work to serve jury duty);
  • In some situations but not all, reporting an employer's violation of the law;
  • Refusing to do something illegal.
The closer in time that the protected activity is to the termination or other adverse employment action, the more likely a judge or jury is to believe that the true motivation was retaliatory.  These kinds of retaliation claims do not arise under the anti-discrimination laws, and may generally be brought within three years of the adverse employment action.
Employer Obligations on Termination
No matter what the reason for termination, employers have certain obligations under Massachusetts law that are strictly enforced.  These are:
  • Immediate payment of all wages earned up to the time of termination.  If an employee resigns, this can be paid within six days of the last day of work, but if they are fired, the employer should be ready with a paycheck that day.
  • Immediate payment of accrued, unused vacation time.  The law treats vacation time as earned wages that must be paid on termination.  This does not apply to sick days or personal days, which can lead to confusion if the different kinds of time off are not carefully tracked. 
  • Information about applying for unemployment benefits must be provided to the employee even if the employer thinks they are not eligible.  The employer can later make the decision about whether to contest an application for benefits, but the information must be provided to the employee.
  • If the employee is part of an employer-sponsored group health plan, he or she must also be provided with notice of the right to continue participating in that plan for a period of time (“COBRA”).  The employer is not required to continue contributing toward the premiums.
It is important to remember that the first two items- payment of final wages and payment of unused accrued vacation- are obligations under the Massachusetts Wage Act, which means a violation can result in the employer being ordered to pay three times the employee's proven damages, as well as the employees legal costs and expenses.  When added to the fees the employer will have to pay their own lawyers, this can become a very expensive mistake that can easily be avoided by a little bit of planning.
How slnlaw Can Help
We can help you navigate these issues and get clarity on your rights and obligations in the face of an actual or imminent employment termination.  You can use the button below to schedule a call back from a member of our team, give us a call at  781-784-2322, or fill out our web form  to let us know a little more about your situation.

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About slnlaw

We are a Massachusetts law firm focused on business law, employment law, and estate planning. Our team includes attorneys with large law firm experience, public service experience, experience working with small businesses on a wide variety of matters, an attorney with an advanced degree (LLM), and a former clerk to the Massachusetts Supreme Judicial Court.  Attorney and founder Emily Smith-Lee has been named to the Massachusetts Super Lawyers list every year since 2013, and was recently named a 2018 Lawyer of the Year by Massachusetts Lawyers Weekly.  Our lead estate planning attorney Jenna Ordway has been recognized as a top estate planning attorney, and has published a book about estate planning in Massachusetts.
 
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