Articles Posted in Termination

A Superior Court awarded a former Westport highway department worker a judgment of more than $500,000 against his union, which refused to represent him after he alleged wrongful termination. oldtruck.jpg

Our Massachusetts employment lawyers understand this case hinged on whether the town union brass showed bad faith in refusing to file a grievance after the truck driver was fired. In order to prove this, the employment attorney had to show that the termination had more to do with a personal dispute between the worker and the town manager than the license suspension on which it was pinned.

According to local news reports, though the case has been ongoing for more than five years, it took a New Bedford Superior Court jury just 2.5 hours to decide in favor of the plaintiff.

Court testimony revealed that in early 2007, the town manager fired the truck driver after the driver reportedly did not inform his bosses that his driver’s license had been suspended for his failure to pay a $35 ticket he received for a seat belt violation in Connecticut.

But the union refused to file a grievance against the town manager for a wrongful termination, despite its first loyalty to the employee. The former trucker decided to hire his own attorney to fight the termination.

He filed suit against the town directly – and he won. In the summer of 2008, a judge ordered the trucker be reinstated by the town. However, the town manager still refused to give him his old job back. Instead, he was allowed to continue working for the town as a custodian. It wasn’t until the following year that the town finally agreed to settle with him for $50,000. In exchange, he would drop his case against the town and resign.

The truck driver said he had little choice but to take the settlement. He had lost his health care benefits, his pension and the job he had held for decades. He was in dire financial straits, in danger of losing his home and his vehicle.

However, the fight wasn’t over. The union, his attorney argued, should have taken up the cause to represent the truck driver from the very start. Instead, it refused to fight back against the city manager’s actions.

The jury ultimately agreed the union violated its contract with the worker.

Union workers tend to have more protections against termination than non-union workers, and employers who fail to adhere to a current contract may find themselves in legal trouble. But that protection comes at a cost – for which the members pay regular and often substantial dues. If the union fails to hold up its end of the bargain by not representing its members, then it has committed a breach of contract as well.

Wrongful termination in Massachusetts, whether it occurs against union or non-union members, can be alleged in a number of scenarios. What’s important to understand is that under state law, all employees – unless they have a specific contract that is established either in writing or through oral agreement – are considered to be “At-Will” employees. What this means is that they can choose to quit whenever they want and conversely, an employer can choose to fire them whenever they want. However, state law does provide a few exceptions. These include:

  • A violation of Good Faith and Fair Dealing. This generally means that an employer fired the worker in order to avoid paying a substantial commission or other form of compensation that they would normally be owed.
  • The Public Policy Exception. This is very rare, but it’s intended to protect a worker from termination for things like being absent in order to serve on a jury.
  • A breach of contract. If there is a contract (such as a union contract) that says an employee can only be fired for certain reasons, such as stealing or committing a crime or insubordination, the employer can be held liable if the worker is fired for reasons other than those stated.
  • Discrimination. This is probably the most common kind of wrongful termination, and there are both state and federal laws that protect workers. Basically, you can’t be fired or given less favorable treatment solely because of your race, gender, age, national origin or disability.

Even in situations where your case may meet this criteria, you’re going to need a dedicated and experienced employment lawyer to help you prove it.
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If a worker is fired in part, but not entirely, due to discrimination, is that enough grounds for legal compensation? hospitalcorridor.jpg

A Texas trial court thought so, and in 2006 ordered a hospital to pay a $3 million judgment to a doctor who had been terminated. However, the hospital appealed, saying only termination based solely on discrimination entitles a plaintiff to compensation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a).

Our Boston employment lawyers note the U.S. Supreme Court has agreed to answer that question, which is posed in University of Texas Southwestern Medical Center v. Nassar.

The plaintiff doctor, of Middle Eastern descent, had been employed as a faculty member with the university, which was affiliated with a local hospital where the faculty substantially comprises the hospital staff. The doctor was a clinician at the branch of the hospital specializing in HIV/AIDS treatment.

After about three years of employment, he came under the supervision of a new chief of infectious disease medicine. She immediately raised questions regarding his billing practices and productivity. The following year, she reportedly remarked that Middle Eastern people are lazy. She later told another staffer that the hospital had hired another “dark skin Muslim” like the plaintiff, adding that she would be watching their productivity more closely than others. When the other staffer noted the plaintiff’s high level of productivity, the supervisor became critical of his billing practices.

The plaintiff doctor was eventually promoted, but his billing and productivity were more closely scrutinized than other doctors by the infectious disease chief. A second promotion was blocked as a result, according to his discrimination claim.

The plaintiff doctor ultimately resigned, citing “continuing harassment and discrimination” by the chief. He eventually landed another position at an AIDS clinic in California, but later filed suit against his old employer for discrimination.

A jury awarded the doctor approximately $500,000 in back pay and another $3 million for compensatory damages.

Upon appeal, justices held that the doctor had failed to prove that his working conditions were so intolerable that a reasonable employee would have felt compelled to quit. However, the court did uphold the jury’s finding that the doctor had been retaliated against. As such, the issue of monetary damages was sent back to the trial court for reconsideration.

In its petition to the U.S. Supreme Court, the employer conceded that while the decision in Price Waterhouse v. Hopkins required that the plaintiff need only prove discrimination as a motivating factor for adverse employment actions, the decision in Gross v. FBL Financial Services held a defendant employer would not be liable if the adverse action would have been taken for some other, non-discriminatory reason.

If the court finds in favor of the employer, it would have an impact on all future employment discrimination litigation, as it would increase the burden of proof required by the plaintiff. He or she would subsequently have to prove that discrimination was the sole reason, or at least the dominant reason, for adverse employment action, rather than one of several factors.
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While we won’t say we told you so, the government has announced a slew of Sarbanes-Oxley violations since we wrote about board of director duties on our Massachusetts Employment Lawyer Blog.

The Sarbanes-Oxley Act of 2002 requires companies and boards of directors to obey financial regulations meant to avoid corporate collapses such as Enron and WorldCom. One thing we didn’t mention was whistleblower protections — which is where the government landed with both feet this month on a number of companies. 182576_whistle.jpg

  • The U.S. Department of Labor found Bond Laboratories Inc. and its former CEO in violation of whistleblower protection provisions. The company has been ordered to rehire the employee and pay about $500,000 in back wages, interest and other damages. The company was accused of firing the officer after he objected to sales figures that misrepresented the company’s value to potential investors.

The company has 30 days to appeal the decision which was issued Sept. 15 by the Occupations Safety and Health Administration.

OSHA enforces the whistleblower portion of the Sarbanes-Oxley Act as well as 20 other laws protecting employees who report violations of laws regulating airlines, consumer products, financial reforms, health care reforms, nuclear energy, commercial motor carriers, environmental, railroad and maritime laws.

Employees who report corporate wrongdoing — whether it’s fleecing the government or unfair labor practices — are generally protected from employer retaliation. Though it can often take a Massachusetts employment law attorney to assert your rights. In many cases, back wages and other damages are available to employees who prove they were wrongly terminated.

  • On Sept. 14, the government ordered Bank of America to pay $930,000 in back wages, damages and interest to an employee fired for reporting suspected Sarbanes-Oxley violations. The employee had worked for Countrywide Financial Corp., which was purchased by B of A. The employee headed internal reviews that found widespread mail and bank fraud by Countrywide employees. The employee said those trying to report the fraud to the company’s employee relations department were frequently retaliated against. Ultimately, the employee was fired shortly after the merger. “It’s essential that American’s workers do not have to fear retaliation when reporting wrongdoing,” said OSHA’s Dr. David Michaels.

For those serving as a corporate board member, these cases illustrate the need to ensure compliance with the law. Sarbanes-Oxley also allows for the personal liability of board members in some situations. The whistleblower statute makes it that much more likely that the government will ultimately find out.

As an employee, you need to understand your rights. In many cases, you are protected from retaliation when reporting a dangerous or illegal condition. However, consulting an experienced Boston employment lawyer is your best bet when it comes to ensuring that those rights are protected.
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An employee who suffered sporadic muscle flare-ups can sue his employer for disability discrimination where the business failed to accommodate his occasional problem, a federal appeals court recently ruled.
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The worker, a parts manager at an AutoZone store, had a condition that caused intermittent tightening in his back muscles. When the condition flared up, he couldn’t perform specific tasks.

The company fired him after keeping him on involuntary medical leave for more than a year.

The worker sued under the Americans with Disabilities Act (ADA). In response, AutoZone argued that he wasn’t “disabled” because his condition only occasionally limited him in his ability to perform major life activities.

The 7th Circuit Federal Court of Appeals, however, disagreed, and said a “predictable yet intermittent pattern” of muscle problems could amount to a disability under the ADA.

The ADA defines “disability” as (a) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment. See 42 U.S.C. § 12102(2) (2006). The EEOC relied on subsection (a), a physical impairment that substantially limits a major life activity, to argue that the employee was disabled from March 2003 to September 12, 2003, because his condition substantially limited his ability to engage in the major life activity of caring for himself.
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While traditional severance pay falls outside of the Wage Act in Massachusetts, not all payments pursuant to a termination of employment are excluded. This is significant because, in a dispute with an employer, courts may award up to treble damages as well as reasonable attorney’s fees and costs under the Wage Act.

It is not uncommon with start-up companies and businesses facing financial difficulties in this tough economy that employees are asked to take pay cuts with the promise of making up the difference when finances get better. This can be tricky when the employment relationship is terminated and the employee has not recouped her wage concessions.

Example Employee and Employer voluntarily agreed to reduce the Employee’s compensation by 25% but this amount would accrue as deferred compensation until the employee left the company, provided the company returned to certain levels of financial performance. This arrangement was documented in a letter signed by a corporate officer and the Employee.

The Employee left the company just as the company hit the performance threshold, and the Employer refused to honor the deferred payment arrangement. The Employee has filed suit in Superior Court under the Massachusetts Wage Act for the wrongful withholding of wage payments, seeking treble damages, attorney’s fees and costs.

Issue Does the post-termination payout arrangement contained in the Employee-Employer letter constitute a “wage” whose timely payment was mandated under the Massachusetts Wage Act?

Answer Yes. The post-termination payout letter was drafted in order to compensate the Employee for her regular job performance for a period where she received a reduced rate of pay.

Courts throughout Massachusetts, as well as the United States District Court (D-Mass.), have held that such deferred amounts are ‘vested wage equivalents,’ properly due the employee under the Wage Act. Although it is recognized that executive bonuses and additional, achievement-driven modes of compensation fall outside the scope of the Wage Act, the overall profitability of a company is not a contingency that removes deferred or substituted wage earnings from the Act’s scope. Finally, no successful argument has yet been made that a deferred or substituted payment of wages constitutes Continue reading

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