On December 17, 2021, the highest state court in Massachusetts held that an employer may not terminate an employee solely for exercising his right to file a rebuttal to be included in his personnel file. The Supreme Judicial Court found this new common law remedy is necessary to fully protect this legal right and to "complement the remedial scheme." See Meehan v. Med. Info. Tech., Inc., No. SJC-13117, 2021 WL 5990887 (Mass. Dec. 17, 2021).
The Court also stated that an employee may not be terminated solely for what is written in his rebuttal, assuming it is directed at explaining the employee's position regarding a disagreement over his employment record, no matter how "intemperate and contentious" it may be (unless it includes physical threats or other "egregious" responses).
This holding is based on the Massachusetts "right of rebuttal" in Mass. Gen. Laws Ann. ch. 149, § 52. According to this statute, an employer must notify an employee whenever the employer modifies or adds information to an employee's personnel file that may negatively affect his employment circumstances. The employee then has a right to inspect his personnel file and to submit a written statement explaining his position on the modifications. This "rebuttal" must then be included in the personnel file whenever it is transferred to a third party (as long as the original modification remains). The statute is enforced by the Attorney General, and employers are subject to small fines for noncompliance....
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