The Massachusetts Appeals Court, in a slip op opinion issued on January 20, 2021, decided that at-will employees can be terminated for submitting rebuttal letters pursuant to G.L.c. 149, §52C (“Section 52C”), and cannot avail themselves of the public policy exception to the general rule that an employee at will may be terminated without cause.

In Terence Meehan v. Medical Information Technology, Inc., plaintiff Terence Meehan argued that he was wrongfully terminated in violation of public policy for exercising his statutory right under Section 52C to submit a written letter to be added to his personnel file, explaining his position on information his employer added to the record. The court disagreed, finding that Section 52C did not meet the public policy exception standard.

The court quoted a 2012 Massachusetts Appeals Court decision, explaining that for the exception to apply, “the public policy must be well defined, important, and preferably embodied in a textual law source.” Ryan v. Holie Donut, Inc., 82 Mass. App. Ct. 633, 636 (2012). The court further emphasized that “the internal administration, policy, functioning, and other matters of an organization cannot be the basis for a public policy exception.” King v. Driscoll, 418 Mass. 576, 582 (1994), S.C., 424 Mass. 1 (1996).

Drawing on the above precedent, the court determined that because the statutory language in Section 52C did not place any limits on the context or content of employee rebuttals, and because the rebuttal letters were to be placed in personnel records that were not available to the public, the right to such rebuttals was not sufficiently important or clearly defined to meet the requirements under the public policy exception. Furthermore, the court found that personnel records by their very nature relate to the internal administration of an organization, and as such, are not entitled to the public policy exception.

The dissent argued that the decision effectively abolishes the rebuttal right for at-will employees, since “no employee in their right mind” would risk the retaliation that the majority’s decision permits.

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Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.