Termination — Massachusetts

When an employer decides to dismiss an employee, it should carefully consider how to manage the process to reduce potential liability. As an initial matter, the employer should implement procedures to ensure that supervisors carry out termination actions in a uniform, professional manner. 

Generally, Massachusetts follows the employment-at-will doctrine. This doctrine holds that an employer or employee may end the employment relationship at any time, and for any reason. While this doctrine gives the employer a great deal of discretion in its termination decisions, the doctrine has exceptions.

Exceptions to the employment at-will doctrine

Federal and Massachusetts laws include several key exceptions to the employment at-will doctrine.

Protected class status

Federal and Massachusetts anti-discrimination laws protect employees from dismissal because of their membership in a protected class, such as:

• race
• national origin
• color
• sex/gender (including marital or pregnancy status)
• religion
• age
• ancestry
• gender identity
• mental illness
• active military status
• disability
• sexual orientation
• military status
• genetic information.

See Discrimination, for a more detailed discussion of these laws.

Military leave

Employers must restore employees who take qualified military leave to the same or a similar position from which they left when they return from duty. See Military leave, for a more detailed discussion.

Family and medical leave

Employers must restore employees who take qualified family or medical leave (including parental leave) to the same or similar position. See Family and medical leave, for more information.

Jury duty

Employers may not dismiss employees who are absent from employment to attend jury duty.

Voting right

Employers may not threaten to dismiss employees to influence political votes.

Workers' compensation leave

Employers may not dismiss employees for filing claims for workers’ compensation.

Labor organization membership

Employers may not require that employees join or refrain from joining a labor organization as a condition of employment.

OSHA/hazardous chemicals

Employers may not dismiss employees for any of the following reasons:

• requesting information regarding hazardous chemicals
• filing complaints relating to the employer’s use of hazardous chemicals under OSHA or the Public Employee Hazardous Chemical Protection and Right to Know Act 
• otherwise reporting or participating in actions under these laws.

Employment contract

When an employee and employer have a written employment agreement that specifically limits the grounds upon which the employment relationship may be terminated, the employer must abide by those grounds or face a potential breach of contract claim.

Benefits

The Employee Retirement Income Security Act (ERISA) prohibits employers from dismissing employees (benefit plan participants) who exercise rights under ERISA.

Handling dismissals 

While an employer may generally terminate an individual’s employment for any reason or for no reason at all, the employer will be in a better position to defend its decision if it takes certain measures before the action.

Establish and follow work policies/rules

The employer should have written work policies or rules concerning how a supervisor carries out the termination of an employee’s position. When an employer clearly communicates its rules and policies, it may be helpful in the later defense of a wrongful termination claim. 

The employer should make clear in its policies that it has the right to skip all levels of progressive discipline and proceed to immediate dismissal should the conduct at issue be sufficiently serious. The employer should also state in its policies that it has the right to change its policies at any time, and that its written policies do not include all areas of potential misconduct. 

Managers should thoroughly familiarize themselves with the employer’s rules and policies so that they may fairly and accurately carry them out.

Review and investigate the matter

When an employer makes a decision based on incomplete or inaccurate facts, not only will the employee suspect improper motives, but a judge or jury may also come to this conclusion. It is therefore important for a supervisor to obtain the objective review of its decision from another supervisor or human resources employee before it carries out the action. This individual should:

• review the decision
• interview employees with knowledge of the facts
• meet with the employee to understand his or her version of events
• make a written record of the investigation.

Involve human resources

If an employer has a human resources department, it should require supervisors to involve the department at all stages of discipline, including termination. Human resources professionals typically are familiar with employment issues, and the proper manner to handle discipline. They may also serve as witnesses to disputes between a supervisor and employee. If an employer does not have a human resources department, it should consult an attorney if it believes that its termination decision has the potential to lead to a legal claim. 

Confirm treatment of similarly situated employees

Employers must be consistent in their treatment of employees. Management should consider the company’s past practice in situations similar to the situation at hand and determine whether its treatment of the employee is the same as its treatment of other employees in similar situations. If not, the employer should consider how it justifies the different treatment. Some factors to consider are:

• the employee’s length of employment
• the employee’s position held
• the employee’s performance and disciplinary history
• other special circumstances that might distinguish the current situation.

Evaluate discrimination or retaliation possibilities

When an employer decides to dismiss an employee, it should consider whether the decision may trigger an employment discrimination or retaliation claim, and whether such a claim would have any merit. The employer should consider:

• Is the employee a member of a protected group?
• What is the composition of the remaining workforce?
• Will the employee be replaced and, if so, by whom?
• How long has the employee worked for the company?
• Is there a written contract with the employee?
• Was the rule the employee violated a written rule? 
• Did the employee receive a copy of the violated work rule (such as in a policies and procedures manual or handbook)?
• Was the rule posted elsewhere?
• Has the employee been warned previously for violation of the work rule?
• Does the documentation in the personnel file support the termination?
• Has the employee recently filed a workers’ compensation claim, an Equal Opportunity Commission charge, or any other type of claim with a federal or state agency?
• Has the employee complained that he or she believes the employer has engaged in prohibited discrimination?
• Has the employee been involved in an internal investigation during which he or she provided information about alleged discrimination, harassment or retaliation in the workplace?
• Is the justification for the termination consistent with past practice, procedure, and treatment of similarly situated employees?

Supporting documents

An employer should support its termination decision with accurate documentation of employee performance issues and/or discipline. Generally, courts and juries put more weight on written documentation than on the recollection of witnesses. Accordingly, all employer actions should be documented and retained in the employee’s personnel file, including:

• performance evaluations
• disciplinary warnings
• probationary periods
• performance improvement plans.

Communicating the decision to terminate

Terminating an employee’s position is a delicate undertaking under the best circumstances. When an employer communicates its decision to the employee, the supervisor and a human resources representative should be present at the meeting. The supervisor should explain its reason for the dismissal (if there is one) to the employee. The supervisor and/or the human resources representative should document the reason communicated to the employee, and should record any response by the employee. 

The meeting should be brief. The supervisor should aim to convey the information in a straight forward and candid manner, rather than attempting to minimize the employee’s areas of weakness or complementing other areas of the employee’s performance. At all times, the employer should treat the employee with respect. 

The employer may want to follow a general outline. These are the following key points to make in the meeting:

• At the time of the dismissal, at least two managerial employees or at least one manager and one human resources employee should always be present.
• Briefly review the employee’s employment history, and comment on the specific problems that have occurred and the attempts to correct these problems.
• Within the first few minutes of the interview, inform the employee that he or she is being dismissed. Explain the decision clearly and concisely. Avoid counseling the employee.
• Make sure the explanation given for the termination is the truth. The accuracy of the stated reason is essential if the employee later files a lawsuit. Oftentimes, when an employer fails to state the true reason for the termination decision, a court or jury finds that the employer’s stated reason is evidence of bad faith or discrimination. When the termination involves a complicated matter, the employer should seek legal advice concerning how to communicate the separation effectively.
• Explain fully any benefits, including COBRA and unemployment compensation that the employee may be entitled to receive. If the employee is not entitled to certain benefits, explain the reason for the ineligibility.
• Allow the employee the opportunity to respond. Note what the employee says, but do not argue with the employee or attempt to justify the decision.
• Request that the employee return all materials, documents, tools, information, or other property of the employer.
• Establish a procedure to retrieve identification cards, delete passwords, change locks (if necessary), and handle any other security matters. Anticipate whether the dismissal will require physical security measures.
• Remind the employee of any non-competition, non-solicitation, or confidentiality requirements that may apply to the individual.
• If appropriate, consider requesting that the employee sign a written release of legal claims in exchange for a severance payment.
• If appropriate, conduct a well-prepared exit interview and follow-up on any helpful suggestions made by the employee.
• Ensure that all employment-related documents are current, complete, accurate, signed, dated, and approved.
• Conduct termination procedures and exit interviews in a consistent manner with all employees. A sample exit interview checklist form is provided at the top of the chapter for download.

Releases that should be signed upon termination

If the employer believes the employee may file a claim upon dismissal or if a major dispute between the employer and employee exists at the time of termination, it may be in the employer’s best interest to enter into a separation agreement that contains a release of all actual and potential claims by the employee. In a separation and release agreement, the employer agrees to provide some additional compensation to the employee in exchange for the employee’s agreement to release the employer from any claims that the employee may pursue against the employer in the future. The employer should seek legal counsel to draft a separation and release agreement.