Massachusetts employers cannot retaliate against their employees for exercising their workers compensation rights. The law, found here, provides, in part: "No employer or duly authorized agent of an employer shall discharge, refuse to hire or in any other manner discriminate against an employee because the employee has exercised a right afforded by this chapter." G. L. c. 152, § 75B (2). A recent Massachusetts Appeals Court decision serves as a good reminder of this provision in the law.

The case Bermudez v Dielectrics, Inc., involved a worker hired by a temp agency and placed in a factory to work for one of its clients. The employee was injured by the negligent operation of a forklift by a factory employee. The injured worker brought a workers compensation claim against the temp agency because the agency was her employer. When she recovered from her injuries the factory hired her as a full-time employee. Later, she brought a personal injury lawsuit against the factory for the injuries she had sustained in the forklift accident. The factory owner (her new employer), cited this tort claim lawsuit as an act of disloyalty and terminated her. After the termination, Bermudez brought a wrongful termination claim against the factory alleging that the firing was in retaliation for the exercise of rights afforded to her under the Workers Compensation law. Significantly, the new employer was not her employee when the accident happened and the tort claims she brought against the factory owner were not for workers compensation benefits, they were personal injury claims against the factory owner as a third party; claims that the workers compensation statute did not create but recognized she could bring under the common law.

The Massachusetts Workers Compensation law creates a no-fault statutory scheme allowing injured employees to recover medical expenses and injury losses from their employers. It is a strict liability statute; meaning that the employee does not have to prove the employer was negligent and the employer cannot deny coverage or recovery by asserting that the employee caused his or her own injuries. Recovery under the Act only requires that the injuries occurred while the employee was on the job. Employers are required to carry workers compensation insurance under the statute. The law permits an injured worker to bring separate claims against third-parties alleging that they were negligent and caused the injuries, even if the employee has already recovered workers compensation benefits against their employers for the same injuries.

In the Bermudez case, the retaliation claims were initially dismissed by the trial court but the Appeals Court reversed the dismissal. The Appeals Court held that the retaliation statute protected employees who assert any rights afforded by the Act, even if the type of third-party claim being pursued preexisted the statute. The Appeals Court rejected the employer’s argument that the statute only applied to retaliation against workers compensation claims “created” by the statute because the language did not include the word “created” but instead protected rights “afforded” by the statute which could include the right to pursue third party negligence claims. According to the Court, this interpretation was consistent with the remedial nature of the workers compensation law and the retaliation provision “should be given a broad interpretation . . .to promote the accomplishment of its beneficent design."

Employers should exercise caution and consult with their attorneys before taking any adverse employment action against an employee has made a workers compensation claim. The failure to do so could be expensive. An employee claiming retaliation can sue the employer in the Massachusetts Superior Court and, if successful, recover lost wages and attorney’s fees. The court can also order the retaliating employer to rehire or reinstate the employee and issue any other orders or relief necessary to protect the rights granted by the statute.
Categories: Blog Posts, News
Posted on Dec | 2018
Experienced Advocates | Effective Solutions