All employers will inevitably be forced to address deficiencies in an employee’s performance or employee misconduct. Employers should take time to develop policies for responding to such issues and, where possible, provide notice to its employees as to what conduct may result in discipline. Employers should also identify to employees the types of discipline that may be meted out in response to performance deficiencies and misconduct. Forms of discipline include but are not limited to oral and written warnings, demotions, suspensions and terminations. This discipline can be assigned based on the circumstances or in progressive manner. Employers should be careful not to institute rigid discipline policies unless they are fully prepared to consistently follow them.
Severance & Separation Agreements
Severance and separation agreements are not only about ending an employment relationship. Despite the difficulties and emotions that may exist at the end of an employment relationship, both employee and employer should not miss the opportunity to negotiate and enter into agreements that can define future communications regarding the relationship and to also be a final release of any liability between the parties. These agreements provide finality for both parties.
Investigations of Workplace Complaints
All employers should have an appointed person or persons to handle complaints by employees about the work environment, whether the complaints are based on the aspects of the position or arise from employee relationships, including complaints of harassment and discrimination. Complaints regarding discrimination and harassment should be addressed immediately with the response reasonably calculated to address the seriousness of the allegation. An appropriate response to certain complaints may negate or mitigate potential claims against the employer.
Investigations may be conducted by persons appointed to complete such undertakings. Alternatively, employers may elect to engage a third-party to complete these investigations, including a local law firm with expertise in the issue complained of. These investigations may include a review of the employer’s policies, interviews of the complainant, the alleged perpetrator of the wrongful conduct and any witnesses, and may result in a report with recommendations for discipline.
Breach of Contract & Workplace Claims
Public Policy Violations, Intentional Interference & Defamation Claims
Employment contracts define the terms of a person’s employment. If an employee believes that he or she was terminated in violation of the terms of the contract, then the employee may seek damages owed to them under the contract.
Employees who do not have employment contracts, known as at-will employees, may seek relief based on common law claims. Common law provides a limited claim for wrongful termination in violation of public policy, which means that the termination was based on the employee asserting a legally guaranteed right (e.g., filing a worker’s compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury).
Employees may also assert claims for defamation against an employer or agent of the employer based on statements made by the employer or agent regarding the employee. Similarly, an employee may assert that the employer or agent interfered with an employee’s business relationship.
There are numerous defenses to such claims, including preemption of claims under the Worker’s Compensation Act, G.L. c. 152, or certain privileges that are enjoyed by an employer and its agent.
Unemployment insurance is a significant expense for employers doing business in Massachusetts. When the employment relationship ends, many employees apply for benefits through the Division of Unemployment Assistance, who then determines the employee’s eligibility for benefits and the amount to be paid. Employers are provided notice and opportunity to challenge benefits for employees who are terminated for cause.