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.