What is Unlawful Retaliation Under Massachusetts Law?
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Even though employment in Massachusetts is "at will," there are some exceptions. One of them is that an employer cannot retaliate against an employee for engaging in activities that are considered protected under the law. The most common examples of protected activity are described below. You can also read about some of the retaliation cases we have handled at slnlaw.
Reporting or Opposing DiscriminationUnder both the state and federal anti-discrimination laws, protected activity includes reporting discrimination that you have experienced, participating in an EEOC or MCAD proceeding, or "opposing" discrimination in the workplace. "Opposing" discrimination includes not only objecting to your own treatment, but also assisting another employee in making a complaint of discrimination, or refusing to participate in a discriminatory act.
You do not have to be right for this to be protected activity. It is protected if you have a "reasonable, good faith belief" that what is happening is unlawful discrimination. |
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Reporting or Opposing Sexual Harassment
If you report sexual harassment and are then fired, disciplined, or subject to some other unfavorable employment action, you may have a claim for retaliation. Like reporting or opposing discrimination, the protected activity can be on your own behalf or on behalf of a co-worker.
Also like reporting discrimination, you merely need to have a "reasonable, good faith belief" that unlawful harassment is occurring. This means even if the employer investigates and concludes that there was no actionable harassment, a negative employment action against you could still be retaliation.
However, unlawful harassment is not the same as workplace bullying or behaviors that are harassing but are not sexual and not based on your race, national origin, age, disability, or other protected class.
Also like reporting discrimination, you merely need to have a "reasonable, good faith belief" that unlawful harassment is occurring. This means even if the employer investigates and concludes that there was no actionable harassment, a negative employment action against you could still be retaliation.
However, unlawful harassment is not the same as workplace bullying or behaviors that are harassing but are not sexual and not based on your race, national origin, age, disability, or other protected class.
Using Family Medical Leave or Sick Time
Both the Massachusetts Paid Family Medical Leave Act ("PFMLA") and the Earned Sick Time Law prohibit retaliation for an employee's use of time off under these laws. The PFMLA is especially strict on this, and states that any negative action taken within six months of asking for or taking leave under its terms will be presumed retaliatory.
Leave under the PFMLA can be up to 20 weeks for your own serious health condition (physical or mental), up to 12 weeks to care for a family member's serious health condition, or up to 26 weeks to care for a family member in the military service with a serious health condition.
Earned sick time can be used for your own short term illness, your own routine medical appointments, a family member's illness or routine medical appointments, or to address the effects of domestic violence.
Leave under the PFMLA can be up to 20 weeks for your own serious health condition (physical or mental), up to 12 weeks to care for a family member's serious health condition, or up to 26 weeks to care for a family member in the military service with a serious health condition.
Earned sick time can be used for your own short term illness, your own routine medical appointments, a family member's illness or routine medical appointments, or to address the effects of domestic violence.
Asserting Rights Under the Wage and Hour Laws
Massachusetts wage and hour laws prohibit retaliation against an employee who has asserted rights under these laws. This can include:
- Asking for late wages
- Questioning whether you are entitled to overtime pay
- Reporting discrepancies between a commission policy and what you are actually paid
- Questioning your classification as an independent contractor
- Filing a wage and hour complaint
Filing a Workers Compensation Claim
If you are injured on the job, you have a right to receive coverage for your medical expenses and partial payment for your lost income under your employer's workers compensation insurance (which they are required to have). Even if your employer contests your application for benefits, for example, if they claim the injury was not job-related, they are not allowed to punish you for applying for the benefits.
Public Employee Whistleblower Protection
The Massachusetts Whistleblower Act protects public employees (state, county, city or town) as well as employees of public utilities from retaliation for disclosing, threatening to disclose or opposing conduct they reasonably believe to be unlawful or to pose a risk to public health, safety or the environment, or providing information to or testifying in front of any public body investigating such activity.
Health Care Worker Whistleblower Protection
The health care provider whistleblower statute protects health care providers from retaliation for disclosing or objecting to an activity, policy, or practice of a health care facility that the provider reasonably believes to be a violation of a law, rule, regulation, policy, or professional standard. This does not cover everyone who works in a health care facility- you must be involved in some way in patient care to be protected under this law. Also, the Massachusetts courts have held that the thing objected to must be an actual practice or policy, not a proposal or a plan.
How We Can Help
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We can help you understand whether what you are experiencing at work is unlawful, and help you protect your rights if you have been retaliated against for reporting it. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
