Brian J. MacDonough, Esq. Sherin and Lodgen LLP, Boston
Barbara A. Robb, Esq. Hartley Michon Robb LLP, Boston
Jennifer A. Yelen, Esq. Posternak Blankstein & Lund LLP, Boston
Scope Note This chapter provides an introduction to the practice of employment law. It addresses internal dispute resolution, intake procedure, and criteria for evaluating the client’s case from the perspectives of both the employee and the employer. The chapter concludes by discuss-ing resolution of employment disputes through mediation, arbitra-tion, administrative agencies, and the courts.
§ 11.1 INTRODUCTION
“Employment law” covers many sins. Exhibit 11A lists some sixty potential state law causes of action, over half of them statutory, many with federal statutory coun-terparts. The assertion that employment is one of the most highly regulated aspects of business is not all hyperbole. Several subtopics are themselves so highly regulated that they are considered separate specialties, such as workers’ compensation, pension and welfare plan regulation, compensation plan tax law, workplace safety, and dis-crimination, to name a few.
The employment relationship can be broken down into several stages: recruitment, hiring, terms and conditions of employment (e.g., benefits, harassment policies), promotion, discipline, and discharge. Some regulatory statutes cover all stages (e.g., discrimination laws); others are more specific. Disputes arise at all stages.
* Updated for the 2017 Edition by Brian J. MacDonough and Barbara A. Robb. This chapter also appears in Massachusetts Employment Law (4th ed. 2015 & Supp. 2017).
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There is no recognized cause of action in Massachusetts for “wrongful termination” or “unjust dismissal.” To be actionable, a claim must arise under either a statute or common law. Defenses derive from those same bodies of law, as do the parameters of any potential damages award. Over recent decades, the statutory law has undergone numerous dramatic revisions. The case law has shifted frequently, sometimes even daily. Needless to say, the application of employment law can be perplexing. To as-sist the practitioner, this chapter provides an overview of the current practice of em-ployment law in Massachusetts. Readers interested in a more in-depth analysis of particular issues may wish to review Mark W. Batten et al., Representing Clients Be-fore the MCAD in Employment Cases (MCLE, Inc. 6th ed. 2014), or Lori A. Jodoin & James A.W. Shaw, Representing a Plaintiff in a Wrongful Termination Case (MCLE, Inc. 5th ed. 2016).
§ 11.2 INTERNAL DISPUTE RESOLUTION
Managers must appreciate that personnel decisions are increasingly subject to review by third parties, such as regulatory personnel, arbitrators, and juries, and that the principal concern of those parties is always whether the individual was treated fairly. In a discipline or discharge context, fairness often boils down to the following questions:
• Was the employee made aware of the employer’s expectations?
• Were those expectations reasonable (i.e., reasonably related to the lawful, safe, efficient, ethical, and fair conduct of the business)?
• Was the employee given fair warning of problems and a meaningful opportun-ity to correct them (or was the shortcoming or offense so egregious that it war-ranted immediate discharge)?
• Was the employer’s administration of its rules objective and consistent, in that similarly situated employees received the same treatment?
As a practical matter, the employer will need to prove that the answers to each of these questions is “yes.” Contemporaneous documentation of each step of the pro-cess is invaluable in this regard.
Practice Note Under the Massachusetts Personnel Record Statute, as amended effec-tive August 1, 2010, an employer must notify an employee within ten days of placing new information in the employee’s personnel record that “has been used or may be used, to negatively affect an employee’s qualification for employment, promotion, transfer, additional compensa-tion or the possibility that the employee will be subject to disciplinary ac-tion.” See G.L. c. 149, § 52C.
Internal dispute resolution can serve the employer well in this process. It performs several useful functions:
• It increases the chances of resolving a dispute at the lowest possible level, thereby saving time, effort, and money, and maintaining workforce morale.
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• It acts as a safety valve and early warning system to alert the employer of po-tential problems before they escalate.
• It gives the employee the opportunity to be heard, thereby enhancing the fair-ness of the employer’s actions.
The particular forms of internal dispute resolution vary widely depending on the size of a workforce and corporate culture. An open-door policy may work quite well in a small workforce, whereas a large company may want to have an ombudsman or a grievance review board in an effort to ensure consistency across multiple departments.
§ 11.3 CASE INTAKE
Unfortunately, many employment cases do not come to a lawyer’s attention until matters are already near or at a crisis point. Thus, development of case strategy is likely to begin at the very first meeting.
§ 11.3.1 Representing the Individual
When representing individuals, intake should include the following steps:
1. The client should be prescreened to determine
– whether there is a conflict of interest,
– whether any statutes of limitation are about to run, and
– whether the matter is one more appropriately handled by another attorney or the client’s union.
2. As part of the prescreening, the client should be asked to gather documents for the initial meeting, including, among other things, résumés, offer letters, employment contracts, job descriptions, employee handbooks, benefits rec-ords, and personnel records (including performance reviews, warning let-ters, and termination notice).
3. The client should be instructed to prepare a detailed chronology. Review of the chronology will help focus the initial meeting.
4. At the first meeting, the lawyer should gather as much information as possi-ble. The goals of this meeting are to review and expand upon the chronol-ogy, learn the “cast of characters,” review the documents, determine the cli-ent’s goals, and evaluate the client and his or her potential claims.
5. In reviewing and expanding upon the chronology, the lawyer should pay particular attention to how the client came to work for the employer, what the client was told about the terms of employment, the history of the prob-lem that led the client to seek legal advice, and, if the client is a member of a protected class, how the client has been treated versus similarly situated employees who are not members of that class.
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6. In learning the “cast of characters,” the lawyer may want to create organiza-tion charts that demonstrate adverse actions and, if appropriate, demonstrate the disparate treatment of members of the client’s protected class.
7. The lawyer should review the documents carefully and question the client about any inconsistencies. Letters of hire and employee manuals may pro-vide evidence regarding contract claims. Performance reviews often are a good barometer of what the employer will say in its defense.
8. Finally, the client’s goals must be determined. Not every client is interested in litigation, and many are seeking nothing more than an equitable sever-ance package and a good reference.
§ 11.3.2 Representing the Employer
For employers, the best defense is the anticipatory defense. There are ten preventa-tive maintenance steps an employer may take:
1. Audit the company’s personnel practices, publications, and procedures for compliance with applicable federal statutes and regulations. Make sure all required records are kept and notices posted.
2. Develop clear and consistent written policies and forms for recruiting, offer letters, reference checking, and hiring; train recruiters and interviewers not to “oversell.”
3. Use a standard form “at-will” employment contract with appropriate sections addressing, as appropriate, confidentiality, proprietary information, noncom-petition, and return of company property upon termination of employment.
4. Review all written employee handbooks, personnel policies, and similar publications for unintended assurances of job security or tenure; disclaim implied employment contracts.
5. Post, distribute, and implement a nondiscrimination and harassment policy and an internal complaint procedure that complies with G.L. c. 151B, § 3A.
6. Adopt written rules of conduct and progressive discipline; train supervisors in the administration of discipline and complaint handling.
7. Conduct regular and objective periodic employee performance evaluations; use job descriptions that identify the job’s essential elements and the criteria for judging performance; document performance and conduct problems contemporaneously.
8. Consider adopting dispute resolution procedures such as multistep griev-ance procedures or mandatory arbitration of employment disputes.
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9. Centralize all discharge decisions. Never fire someone without an investiga-tion and an opportunity for the alleged wrongdoer to tell his or her side of the story. Supervisors can and should be authorized to send someone home pending an appropriate investigation; there is no need to fire “on the spot.”
10. Document, document, document!
§ 11.4 CASE EVALUATION
The lawyer who does not make a reasonable judgment as to the likelihood of success does the client no service. Failure to make an independent evaluation of the merits of a claim may also result in counsel’s own liability under applicable rules. See, e.g., Cahaly v. Benistar Prop. Exch. Trust Co., 85 Mass. App. Ct. 418, 429 (2014) (noting that an attorney must make a “reasonable inquiry” into the factual and legal basis supporting the pleadings or be subject to sanctions).
§ 11.4.1 Representing the Individual
In evaluating the case, the employee’s lawyer must evaluate the client, the defenses, the crediting or discrediting evidence, and the potential damages.
(a) Evaluate the Client
Employment cases are often long emotional battles. The lawyer should not shy away from pursuing answers to hard questions, such as those about the client’s prior work history, poor performance reviews, and personal problems unrelated to work. Ulti-mately, the lawyer must evaluate whether the client is both credible and sympathetic.
(b) Evaluate the Defenses
The employee’s lawyer must be prepared to refute the employer’s defenses. Some defenses may arise from statute, such as a failure to make a timely administrative filing. Others may arise from common law, such as reliance on a common law privi-lege. Still others may be factual, such as nondiscriminatory reasons for an adverse action against a member of a protected class.
The question for the employee’s counsel is whether or not those defenses can be overcome. For example, was the unlawful act “continuing” so that the administrative filing was timely? Were similarly situated employees who were not members of the client’s protected class treated more favorably than the client? Unless the facts sup-port affirmative answers to all such questions, even the most credible and sympa-thetic client may not have a case worthy of pursuit.
Practice Note The Supreme Judicial Court recently affirmed that Chapter 151B protects an individual who, while still employed, gathers information in support of his or her claim. See Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky &
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Popeo, P.C., 474 Mass. 382, 410 (2016). Called “self-help discovery,” this information gathering can be protected activity under the anti-discrimination statute if the “employee’s actions are reasonable in the to-tality of the circumstances.” Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. at 410. The court identified seven cri-teria to determine whether an employee’s actions were reasonable. Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. at 413–14. If a court determines that the employee’s actions were reasonable, any adverse action taken in retaliation for the self-help dis-covery is a standalone violation of law and cannot serve as the employ-er’s legitimate business reason.
(c) Evaluate Crediting and Discrediting Evidence
Cases often turn on the weight of evidence crediting and discrediting each party’s version of the facts. Of particular importance in an employment case are the parties’ admissions (such as those that may be contained in performance reviews and, in-creasingly, e-mail communications), the testimony of truly neutral third parties, and evidence of the employer’s prior treatment of other members of the client’s protected class.
(d) Evaluate Damages
As a general rule, the broadest range of damages is available in discrimination cases and the narrowest is available in contract cases. The evaluation of damages involves a subjective evaluation of the parties, the forum, and the facts.
Although employment cases are often David and Goliath contests, not all parties fit neatly into those stereotypes. For example, the ever-suffering supervisor can be, and has been, pitted successfully against the “problem employee.”
Some rules of thumb should be considered regarding the forum. Employees’ counsel often complain that arbitrators are stingy and say that they prefer to try the case to a jury. Employers’ counsel complain that the Massachusetts Commission Against Dis-crimination (MCAD) is likely to play fast and loose with the corporate purse.
Most triers of fact are, or have been, employees. Most have not brought legal action to resolve their employment problems. Indeed, common sense dictates against bring-ing such action unless the conduct in question reaches a sufficient level of social un-acceptability. Ultimately, in evaluating potential damages, the employment lawyer must determine whether the facts of the client’s case reach that level.
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§ 11.4.2 Representing the Employer
(a) Fairness
Fairness is the overriding issue. If the adverse action was taken due to unsatisfactory work, counsel should have these questions in mind when reviewing a dispute: was the employee counseled and told
• what was expected,
• how the employee’s performance was falling short,
• what had to be done,
• what was the acceptable time frame for improvement, and
• that his or her job was on the line if satisfactory improvement was not maintained?
If the action was against a long-term employee, counsel should keep the following questions in mind:
• Was there a documented prior history of problems?
• Has there been a recent documented deterioration in performance?
• Was there an unusual incident meriting discipline or discharge in spite of prior acceptable performance? Was it investigated properly?
• Has there been some other change in circumstances that justifies adverse action (e.g., an economically motivated reduction-in-force)?
If the adverse action is disciplinary, has step-discipline been used? If not, why not? Is the action consistent with prior actions in similar cases? Is the action objectively consistent with the lawful, safe, efficient, ethical, and fair conduct of the business?
(b) Investigation
Counsel’s document review should include
• all personnel records for the complainant and similarly situated persons,
• employment contracts,
• relevant company policies or procedures, and
• investigation reports.
Witnesses to be interviewed should include all decision makers and advisors, as well as all fact witnesses. Counsel should interview witnesses.
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(c) Annotated Chronology
Counsel should begin an annotated chronology immediately. Each event in the chro-nology should be annotated with the information source, be it a document or witness. The chronology should be supplemented throughout the investigation. Conflicting versions of each material fact should be noted. Various user-friendly computer pro-grams are available that allow searches and reports by witness, issue, elements of causes of action, damages, defenses, etc.
(d) Multiple Representation
Employment disputes often involve actual or potential claims against individuals, as well as the employer. In such cases, employer’s counsel must determine whether an actual conflict of interest precludes representing both the employer and the individ-ual. In any event, counsel must inform any actual or potential individual defendants that counsel may be constrained by the Massachusetts Rules of Professional Conduct to cease representing or advising them should a conflict with the employer develop, and that the individuals may want to consult with independent counsel about possible separate representation as a result.
(e) Insurance Coverage
Employer’s counsel should review the employer’s insurance policies for possible coverage in particular matters and should give timely notice to the insurer of an actual or possible claim.
(f) Legal Analysis
The elements of all possible causes of action, damages, defenses, and counterclaims should help guide counsel’s investigation. Similarly, the annotated chronology should be used as a source of facts to assess each element of possible claims, damages, de-fenses, or counterclaims. See Exhibit 11A. Counsel should evaluate possible claims as well as those actually asserted in order to advise the client properly. It is not un-common for a complainant before the MCAD to file a “bare bones” charge, wait to see the employer’s position statement filed in response to the charge, and then file a detailed rebuttal to the position statement once the employer is committed to a par-ticular defense. Employers should not make the mistake of thinking the complainant is limited to the allegations in the original charge.
(g) Get It Right the First Time
An employer changes its original explanation for a particular adverse action at its peril. See Lipchitz v. Raytheon Co., 434 Mass. 493, 498–508 (2001); Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107, 116–19 (2000). This explana-tion may be found in a warning letter, a written response to a grievance, an unem-ployment compensation form, a performance evaluation, or a position statement.
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Counsel should work with the employer to ensure that the contemporaneous docu-mentation is thorough and accurate.
(h) Advocacy
A large part of counsel’s job is to present the client’s story understandably and con-vincingly. The evidence is usually in the form of documents and testimony. Good documents most often result from good policies and procedures implemented before the dispute arose. Empathy, integrity, and fairness are highly desirable attributes for a good witness.
§ 11.5 EXTERNAL RESOLUTION
If both internal methods for resolving claims and informal settlement negotiations fail, parties may find themselves turning to external forums in an effort to resolve their differences. Such forums include alternative dispute resolution (ADR), agency proceedings, and judicial proceedings.
§ 11.5.1 Alternative Dispute Resolution
In an effort to decrease both the backlog of employment cases and the costs of liti-gating those cases, the U.S. Congress, in Section 118 of the Civil Rights Act of 1991, and the Massachusetts Commission Against Discrimination have encouraged the use of alternative forms of dispute resolution in certain employment cases.
Alternative dispute resolution is a broad term encompassing a variety of extrajudicial methods for resolving disputes. Among the better known and more frequently uti-lized of those methods are mediation and arbitration.
(a) Mediation
In mediation, an independent third party assists the parties in resolving their dispute. Having no power to impose a resolution on the parties, the mediator utilizes a variety of techniques to assist the parties in overcoming barriers to a negotiated resolution. David A. Hoffman & David E. Matz, Massachusetts Alternative Dispute Resolution § 2.17 (Michie/Butterworth 1996).
Parties wishing to utilize the services of a mediator can directly contact independent providers of mediation services. Parties may also take advantage of either agency-sponsored mediation programs, such as that offered by the MCAD, or state or federal court-sponsored mediation programs.
(b) Arbitration
In arbitration, the parties select a third party or a panel of third-party individuals to hear evidence and render a decision regarding the dispute. An arbitrator, unlike a
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mediator, is empowered to impose a binding resolution on the parties. Massachusetts Alternative Dispute Resolution at § 2.02.
Pursuant to the terms of collective bargaining agreements, disputes between union members and their employers have traditionally been submitted for arbitration. As a result, there is a well-developed body of law on the arbitration of labor disputes.
More recently, an increasing number of employment cases have been referred to arbi-tration. That increase has resulted, at least in part, from the increased number of indi-vidual employment contracts that include either mandatory or permissive arbitration provisions.
The Supreme Court resolved a major issue in Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), ruling that predispute mandatory arbitration provisions in employ-ment contracts (other than for transportation workers) are enforceable under the Fed-eral Arbitration Act (FAA), 9 U.S.C. § 1 et seq., “save upon such grounds as exist at law or in equity for the revocation of any contract,” and that the FAA preempts con-trary state laws. Circuit City Stores, Inc. v. Adams, 532 U.S. at 111–15 (quoting 9 U.S.C. § 2). Even if the individual complainant is bound by an arbitration provi-sion, however, such agreements do not preclude the EEOC or MCAD from pro-cessing an employment discrimination charge. See EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) (EEOC may pursue victim-specific judicial relief on behalf of em-ployee who has entered into predispute arbitration agreement with employer); Joulé, Inc. v. Simmons, 459 Mass. 88, 95–96 (2011) (MCAD may pursue victim-specific relief); Addanki v. Cyberbills, Inc., No. 01130386 (MCAD Apr. 29, 2005) (mandatory arbitration clause in employment agreement unenforceable in MCAD proceedings).
Further, in the First Circuit, certain federal statutory discrimination claims are sub-ject to arbitration only “[w]here appropriate and to the extent authorized by law.” Campbell v. Gen. Dynamics Gov’t Sys. Corp., 407 F.3d 546, 554–59 (1st Cir. 2005) (concluding that a companywide e-mail regarding a new mandatory arbitration policy was unenforceable under the totality of the circumstances pursuant to the “appropri-ate” prong as it failed to provide sufficient notice to the employee of a waiver of the employee’s right to access a judicial forum); Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1, 21 (1st Cir. 1999) (refusing to enforce an arbitra-tion agreement under the “appropriate” prong due to defendant’s failure to provide a minimum level of notice to the employee that her statutory claims would be subject to arbitration). But see Skirchak v. Dynamics Research Corp., 508 F.3d 49, 58–59 (1st Cir. 2007) (rejecting the “appropriateness” argument for claims arising under the FLSA). In addition, compare Blanchette v. School Committee of Westwood, 427 Mass. 176 (1998) (although union has power to bargain away collective rights, it may not bargain away personal rights, such as those protected by G.L. c. 151B), with 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009) (provision in collective bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law); Preston v. Ferrer, 552 U.S. 346, 358–59 & n.7 (2008) (holding that when parties agree to arbitrate all questions aris-ing under a contract, the Federal Arbitration Act supersedes state laws lodging pri-mary jurisdiction before another “impartial arbiter” deciding the same disputes
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between private parties, whether judicial or administrative, but explicitly exempting from its holding agencies with independent authority to investigate and rectify viola-tions of the law, such as the EEOC); and Warfield v. Beth Israel Deaconess Medical Center, 454 Mass. 390 (2009).
In Warfield v. Beth Israel Deaconess Medical Center, 454 Mass. 390, 398 (2009), the Supreme Judicial Court acknowledged the federal policy favoring arbitration, but also held that, in view of the strong public policy against discrimination in employ-ment, any agreement to arbitrate claims of discrimination must be stated clearly and unmistakably. In Joulé, Inc. v. Simmons, 459 Mass. 88, 96–98 (2011), the court clari-fied that nothing in Warfield was meant to suggest that an employee who has entered a valid arbitration agreement is precluded thereby from filing a complaint with the MCAD under G.L. c. 151B, § 5, testifying before the MCAD, or providing infor-mation, materials, or responses to the respondent’s submissions as necessary for in-vestigation of the case. If there is a valid and enforceable arbitration agreement, the employee is barred from intervening pursuant to 804 C.M.R. § 1.20(3)(a) as a party to the MCAD proceeding and barred from double recovery in arbitration and the MCAD proceeding; however, the employee can still be awarded victim-specific relief by the MCAD. General Laws c. 151B, § 5 does allow the complainant’s counsel to stand in the shoes of the MCAD and prosecute the charge before the MCAD. See G.L. c. 151B, § 5 (“The case in support of the complaint shall be presented before the commission by one of its attorneys or agents or by an attorney retained by the complainant . . . .”). There is no legal bar to having concurrent arbitration and MCAD proceedings; however, double recovery should be precluded. In the event of concur-rent proceedings, “the decision whether to stay the arbitration proceeding pending the outcome of the MCAD case would appear to be up to the arbitrator.” Joulé, Inc. v. Simmons, 459 Mass. at 96 n.9. Employers may want to address this possibility in the arbitration agreement.
Practice Note In navigating through these thorny arbitration issues, practitioners need to be cautious not to interfere with the competing rights and interests of the administrative agency and/or individuals involved. See Orders of the Investigating Commissioner, Simmons v. Joulé, Inc., No. 09BEM02347 (MCAD Feb. 17, 2012) (denying respondents’ motion for administrative closure and amending the charge of discrimination sua sponte to include a claim under G.L. c. 151B, § 4(4A) after respondents threatened the complainant (and the MCAD) with pursuit of a court action seeking a contempt order, attorney fees, and costs if the charge of discrimination was not dismissed immediately).
§ 11.5.2 Agency Proceedings
Employees asserting statutory claims against their employers often must first file their claims with an administrative agency. For example, unemployment compensa-tion claims must be filed with the Division of Unemployment Assistance, and workers’
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compensation claims must be filed with the Department of Industrial Accidents. Other agencies with jurisdiction over certain employment-related claims include
• the Massachusetts Commission Against Discrimination and the U.S. Equal Employment Opportunity Commission (discrimination in employment, public accommodation, and housing);
• the Civil Service Commission (claims involving the discharge, suspension, failure to hire or promote, transfer, layoff, reinstatement, reemployment, or demotion of state civil service employees);
• the National Labor Relations Board (claims alleging violations of the National Labor Relations Act);
• the Labor Relations Commission (claims alleging violations of the state’s col-lective bargaining laws);
• the Office of the Attorney General (nonpayment of wages, prevailing wage violations, minimum wage violations, overtime pay violations, paid sick leave violations, and violations of the state personnel record law); and
• the Occupational Safety and Health Administration (claims alleging violations of the Sarbanes-Oxley Act of 2002).
Failure to make a timely filing with the administrative agency is often a jurisdictional bar to filing that claim in court.
Practice Note In Depianti v. Jan-Pro Franchising International, Inc., 465 Mass. 607 (2013), the Supreme Judicial Court held that the plaintiff’s failure to ex-haust administrative remedies under the Massachusetts Wage Act by fil-ing a complaint with the attorney general before initiating a private suit did not preclude the court from considering the claims, when the attorney general was notified of the suit during its pendency and the defendant was not otherwise prejudiced.
Since employees commonly claim that their employers discriminated against them, practitioners must be familiar with the administrative procedures governing employ-ment discrimination claims under state and federal law. Claims of discrimination must be filed with the MCAD within 300 days of notice of the claim. G.L. c. 151B, § 5 (as amended by 2002 Mass. Acts c. 223 (approved Aug. 7, 2002)). Under MCAD regulations, a provision of limitation has not been a bar to filing in instances where
• the unlawful conduct was of a continuing nature;
• pursuant to an employment contract, the aggrieved person enters into internal grievance proceedings concerning the alleged discriminatory acts within 300 days of the conduct complained of and subsequently files a complaint within 300 days of the outcome of such proceedings; or
• the aggrieved person, within 300 days of the complained-of conduct, enters into an agreement to voluntarily mediate the dispute and files a complaint within
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twenty-one days of the conclusion of those proceedings (such agreements must comply with specific MCAD requirements).
804 C.M.R. § 1.10(2), (3).
In Massachusetts, claims asserted pursuant to Title VII must be filed with the Equal Employment Opportunity Commission (EEOC) within 180 days of notice of the ad-verse action. 42 U.S.C. § 2000e-5(e). However, this 180-day filing deadline may be extended to 300 days if the claim is also covered by a state or local antidiscrimina-tion law. Though the MCAD has the power to investigate and adjudicate claims of discrimination, the EEOC is empowered only to investigate and conciliate claims and, if it so chooses, to pursue judicial relief. After the initial complaint is filed, the MCAD reviews it to determine whether there are reasons such as standing, jurisdic-tion, timeliness, or other jurisdictional matters that would render a formal investiga-tion by the Commission contrary to the public interest. 804 C.M.R. §§ 1.13(1), (2). (For a chart summarizing MCAD procedures, see Exhibit 11B.) If the Commission determines that a formal investigation by the Commission is unnecessary, it will au-thorize the complainant to pursue his or her claim in the Superior Court. 804 C.M.R. § 1.13(1). The complainant may appeal the denial of a formal investigation by filing with the clerk of the Commission, within ten days of receiving notice of the denial, a request for preliminary hearing. 804 C.M.R. § 1.13(1)(a)(2).
Assuming the complaint meets this initial hurdle, the MCAD has thirty days within which to begin an investigation. 804 C.M.R. § 1.13(2). As part of the investigation, the MCAD serves notice of the complaint on the respondent, who must file an an-swer in the form of a position statement within twenty-one days of receipt of the notice. 804 C.M.R. § 1.10(8). After receiving the employer’s position statement, the Commission will request that the complainant respond to the position statement by filing a rebuttal and may convene an investigative conference to obtain evidence, identify issues in dispute, ascertain the positions of the parties, and explore the pos-sibility of negotiated settlement.
If predetermination discovery is authorized, each party may serve up to fifteen re-quests for documents and up to fifteen interrogatories. 804 C.M.R. § 1.13(7)(b). In addition, each party is permitted to take up to six hours of deposition. 804 C.M.R. § 1.13(7)(b).
After appropriate investigation, the investigating commissioner issues a determina-tion regarding each claim included in the charge. 804 C.M.R. § 1.15(7). Where the investigating commissioner concludes that there is sufficient evidence upon which a factfinder could form a reasonable belief that the respondent committed an unlawful practice, the commissioner issues a finding of probable cause. 804 C.M.R. § 1.15(7)(a). Otherwise, the commissioner issues a lack-of-probable-cause finding. 804 C.M.R. § 1.15(7)(b). The regulations issued by the MCAD require that the inves-tigation of a complaint be completed within eighteen months, unless it is impractical to do so. 804 C.M.R. § 1.13(3).
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If the Commission issues a probable cause finding, the Commission conducts a con-ciliation meeting between the parties, in which the MCAD will attempt to assist the parties in negotiating a resolution of the dispute. 804 C.M.R. § 1.18. Where the com-plainant rejects a settlement offer that the MCAD deems reasonable, the Commission may close the matter and allow the complainant to pursue the matter in court. 804 C.M.R. § 1.18(4).
Where formal conciliation efforts fail for reasons other than the complainant’s rejec-tion of a reasonable offer of settlement, the parties may request the opportunity to conduct additional discovery prior to the certification conference. 804 C.M.R. § 1.19. With the permission of the Commission, the parties may serve interrogatories, sub-poena documents, and depose witnesses. 804 C.M.R. § 1.19. At the conclusion of this discovery period, the MCAD schedules a conference to determine whether a public hearing of the matter is in the public interest. 804 C.M.R. §§ 1.20(1), 1.20(3). If so, the Commission certifies the case for public hearing. 804 C.M.R. § 1.20(3).
Within thirty days of the certification of the case for public hearing, the MCAD re-quires the complainant to waive his or her right to remove the complainant to state court. 804 C.M.R. § 1.15(2)(c).
Practice Note In administrative proceedings before the MCAD pursuant to G.L. c. 151B, § 5, the respondent is not permitted to reserve a right to a jury trial de novo in state court. See Stonehill Coll. v. MCAD, 441 Mass. 549 (2004) (overruling in part Lavelle v. MCAD, 426 Mass. 332 (1997)).
A hearing commissioner (who is different from the investigating commissioner) or a hearing officer is appointed and presides over the public hearing. 804 C.M.R. § 1.21. Except for the rules of privilege, the Commission is not bound by judicial rules of evidence in conducting the public hearing. 804 C.M.R. § 1.21(11).
After the conclusion of the public hearing, the Commission issues a written decision containing findings of fact and conclusions of law. 804 C.M.R. § 1.21(18). After re-ceiving the decision, the aggrieved party may appeal the decision of the hearing commissioner to the full Commission. 804 C.M.R. § 1.23(1).
Typically, an appeal to the full Commission is confined to the record. 804 C.M.R. § 1.23(f), (g). The Commission may set aside or modify the decision of the hearing commissioner on a limited number of grounds. 804 C.M.R. § 1.23(h). Once the full Commission issues its decision, a person or entity aggrieved by that decision may have the decision reviewed by a judge of the Superior Court. 804 C.M.R. § 1.24.
§ 11.5.3 Judicial Proceedings
(a) Judicial Review of Agency Decisions
Pursuant to G.L. c. 30A, § 14, persons or entities aggrieved by the final decision of any agency in an adjudicatory proceeding are entitled to have that decision reviewed
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by a judge. The aggrieved party initiates such “30A review” by filing a complaint in the Superior Court. The review is conducted by the court without a jury and is typi-cally confined to the administrative record.
The decision of the agency is upheld unless the court determines that the substantial rights of any party may have been prejudiced because the agency decision was
• in violation of constitutional provisions;
• in excess of the statutory authority or jurisdiction of the agency;
• based on an error of law;
• made upon unlawful procedure;
• unsupported by substantial evidence; or
• arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.
(b) Trial
Plaintiffs asserting particular employment claims, including contract, tort, and certain statutory claims, may file their claims directly in court. In addition, in some instances, plaintiffs are allowed to submit their claims to a judge or a jury rather than have them resolved by an agency. For example, in employment discrimination cases, a party who has complied with the administrative filing requirements may decide to forgo the investigatory proceedings and/or a public hearing by the MCAD and, instead, may file a demand for a jury trial in court.
§ 11.5.4 Making Your Decision
Practitioners faced with the choice of having their client’s discrimination claims heard in either an administrative or in a judicial forum should keep the following differences between the forums in mind.
• A party who opts to present his or her case in a judicial forum does not have to meet the probable cause standard articulated by the Commission. However, in court that party may be forced to oppose and survive one or more pretrial, dis-positive motions, such as a motion to dismiss and a motion for summary judgment.
• Parties in a judicial proceeding may promptly pursue discovery limited only by the governing rules of civil procedure, as opposed to the limited predetermina-tion discovery allowed by the MCAD.
• Parties in a judicial proceeding may have their case heard by a jury. In admin-istrative proceedings before the MCAD, claims are heard by commissioners and hearing officers.
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• In a judicial proceeding, the rules of evidence apply. Thus, evidence that the MCAD might have considered may not be allowed into evidence in a judicial proceeding.
• Finally, compensatory damages, emotional distress damages, and attorney fees are available in either forum, but punitive damages are available only in court.
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EXHIBIT 11A—A Massachusetts Employment Lawyer’s Checklist: Claims, Defenses, and Counterclaims
Compiled by Nancy S. Shilepsky, Esq., and Kathleen B. Hogan, Esq., and revised by Barbara A. Robb, Esq., Brian J. MacDonough, Esq., and Jennifer A. Yelen, Esq.
I. “Wrongful Termination” Claims
A. Implied covenant of good faith and fair dealing
B. Violation of public policy
II. Breach of Contract Claims
A. Contracts for employment terminable only for just cause
B. Contracts for permanent employment
C. Contracts for year-to-year employment
D. Contract terms other than durational terms
E. Quasi-contract and promissory estoppel
F. Implied contract
G. Terms arising from conduct of the parties
H. Modifications of employment contracts
I. Third-party beneficiary claims
III. Tort Claims
A. Abuse of process
B. Assault and battery
C. Civil conspiracy
D. Defamation
E. False imprisonment
F. Fiduciary rights of minority stockholder in a closely held corporation
G. Intentional infliction of emotional distress against co-employees or unions
H. Loss of consortium/parental support
I. Malicious prosecution
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J. Misrepresentation
1 Failure to warn—“Half truths may be actionable as whole lies”
2. Intentional, innocent and negligent misrepresentation
3. Promissory statements and the “superior knowledge” exception
K. Negligent breach of contract duty
L. Negligent data compilation and maintenance
M. Negligent hiring, supervision and retention of coemployees
N. Negligent infliction of emotional distress—against employer
O. Tortious interference with contractual/advantageous relations
IV. Breach of union’s duty of fair representation
V. Statutory rights and claims
A. AIDS virus antibody testing—G.L. c. 111, § 70F
B. Anti-Electronic Surveillance Laws—18 U.S.C. § 2511; G.L. c. 272, § 99
C. Anti-SLAPP (strategic litigation against public participation), G.L. c. 231, § 59H;
D. Civil Rights Acts—42 U.S.C. § 1981–1983; G.L. c. 12, §§ 11H, 11I
E. Civil Service Law—G.L. c. 31
F. Comparable Work Statute—G.L. c. 149, § 105A
G. Continuation of Health Coverage—29 U.S.C. § 1161 et seq. (COBRA); G.L. c. 175, §§ 110, 110G, 110I (insurance coverage); G.L. c. 176A, §§ 8D, 8F; G.L. c. 176B, §§ 6A, 6B; G.L. c. 176G, § 5A (HMOs); G.L. c. 176J, § 9 (“Mini-COBRA” statute)
H. Credit Reports—15 U.S.C. § 1681m(a) (requiring disclosure to consumer of credit reports that are the basis of the denial of employment); G.L. c. 93, § 62(a) (same)
I. Domestic Violence & Abuse Leave Act—G.L. c. 149, § 52E
J. Domestic Workers—An Act Establishing the Domestic Workers’ Bill of Rights, 2014 Mass. Acts c. 148
K. Equal Pay Act—29 U.S.C. § 206(d); G.L. c. 149, § 105A (with amendments effective July 1, 2018)
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L. ERISA—29 U.S.C. §§ 1132 (benefits), 1140 (termination and interference with protected rights)
M. Family & Medical Leave Act—29 U.S.C. § 2601 et seq. (including leave for family members on active duty and for military caregivers)
N. Fraudulent Advertisement of Employment Terms—G.L. c. 149, § 21
O. Garnishment Law—15 U.S.C. § 1674(a) (prohibiting discharge of employee due to fact that said employee’s earnings have been garnished)
P. Health and Safety Laws—29 U.S.C. § 651 et seq. (Occupational Safety and Health Act); G.L. c. 111F (right-to-know law regarding toxic and hazardous waste)
Q. Interference with Employment—G.L. c. 149, § 19
R. Invasion of Privacy—G.L. c. 214, § 1B
S. Involuntary Retirement of Public Employee—G.L. c. 32, § 16
T. Jury Service—G.L. c. 268, § 14A (prohibiting discharge of employee for serving as juror)
U. Lie Detector Law—G.L. c. 149, § 19B
V. Parental Leave Law—G.L. c. 149, § 105D
W. Older Workers Benefit Protection Act—29 U.S.C. §§ 623, 626(f) (prohibit-ing discrimination against older workers in provision of benefits and estab-lishing strict requirements for waiver of rights)
X. Personnel Records Law—G.L. c. 149, § 52C
Y. Plant Closing Laws—29 U.S.C. § 2101 et seq. (WARN); G.L. c. 151A, § 71A et seq.
Z. Public School Employee Tenure Law—G.L. c. 71
AA. RICO—18 U.S.C. §§ 1961–1968
BB. Takeover Law—G.L. c. 149, §§ 20E, 183
CC. Sexual Harassment Law—G.L. c. 214, § 1C; G.L. c. 151B
DD. Small Necessities Leave Act—G.L. c. 149, § 52D
EE. State and Federal Tort Claims Acts—G.L. c. 258; 28 U.S.C. § 2401 et seq.
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FF. Unlawful Discrimination—42 U.S.C. § 2000e et seq. (Title VII); Age Dis-crimination in Employment Act, 29 U.S.C. § 621; 42 U.S.C. § 1981; Ameri-cans with Disabilities Act, 42 U.S.C. § 12101 et seq.; Rehabilitation Act, 29 U.S.C. §§ 793, 794; Religious Freedom Restoration Act, 42 U.S.C. § 2000bb; Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et seq.; G.L. c. 151B, G.L. c. 93, §§ 102, 103
GG. Fair Labor Standards Act—29 U.S.C. § 201 et seq. (federal wage and over-time law)
HH. Wage and Hour Laws—G.L. c. 149, § 148 (requiring payment of wages to most nonexempt employees on a weekly or biweekly basis and requiring payment to discharged employees of salaries and benefits owed as of their termination); G.L. c. 149, § 148A (antiretaliation provision for asserting rights under wage and hour laws); G.L. c. 149, § 148B (independent con-tractor statute); G.L. c. 149, § 148C (earned sick time); G.L. c. 149, §§ 26–27 (prevailing wage law); G.L. c. 149, § 152A (tips law); G.L. c. 151 (Min-imum Wage and Overtime Law); G.L. c. 149, § 150 (private right of action for violation of wage and hour laws)
II. HOME Act—G.L. c. 149, § 52A½ (paid leave for veterans on Veterans Day and Memorial Day); G.L. c. 151B, § 4 (adding veteran status as a protected class for employment purposes)
JJ. Whistleblower Protection Acts—5 U.S.C. §§ 1211–1219, 1221–1222, 3352 (federal employees); 31 U.S.C. § 5328 (employees of financial institutions); G.L. c. 149, § 185 (state employees); G.L. c. 149, § 187 (health care work-ers); 31 U.S.C. § 3730 (employees of federal contractors accused of com-mitting claims fraud against federal government); G.L. c. 12, § 5A (state equivalent); 15 U.S.C. § 78u-6(b)(1) (individuals who report violations of securities laws); 18 U.S.C. § 1514A (employee of publicly traded company)
KK. Workers’ Compensation Act—G.L. c. 152; G.L. c. 41, § 111F (for state and municipal employees)
VI. State and Federal Constitutional Claims—G.L. c. 12, §§ 11H–11J (Massachu-setts Civil Rights Act); 42 U.S.C. § 1983 (federal constitutional claim against state or municipal employer)
VII. Defenses
A. After-acquired evidence
B. Claim/issue preclusion
C. Contract defenses
D. Discretionary function—G.L. c. 258, § 10(b) and common law
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E. ERISA failure to exhaust
F. Preemption of state law claims
1. ERISA
2. Federal Labor Preemption
3. OSHA
G. Failure to comply with administrative filing requirements of discrimination statutes
H. Failure to exhaust contractual/administrative remedies
I. Failure to mitigate damages
J. Immunities—nongovernmental actors
K. Immunities—public employers
L. Legitimate, nondiscriminatory reason for action
M. No civil remedy
N. Preexisting statutory remedies
O. Privileges
P. Statutes of limitation/administrative filing requirements
Q. Tort defenses
R. Workers’ compensation preclusion
S. Arbitration requirement
T. Statute inapplicable where employer does not have required minimum num-ber of employees
U. Immunities—charitable/nonprofit organizations
V. Individuals not liable under federal discrimination laws
VIII. Counterclaims
A. Breach of fiduciary duty/duty of loyalty
B. Contract claims
C. Tort claims
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EXHIBIT 11B—Procedures for Private Complaints
Prepared by Kathleen E. Hogan, Esq., and revised by Barbara A. Robb, Esq., Jennifer A. Yelen, Esq., and Brian J. MacDonough, Esq.
PROCEDURES FOR PRIVATE COMPLAINTS
Filing of Complaint 804 C.M.R. § 1.10(1)–(2), (4)–(7)
A complainant must file a Complaint with the MCAD within 300 days of notice of the adverse act.
Answer 804 C.M.R. § 1.10(8)
Upon receipt of the Complaint from the MCAD, a respondent has 21 days to file an answer that must respond to the facts in the Complaint and must assert ALL AFFIRMATIVE DEFENSES.
The answer to the Complaint must be signed and affirmed by the respondent, and signed by counsel retained by the respondent.
Rebuttal
A complainant may file a response to the position statement/answer within the time permitted by the MCAD.
Formal Investigation Authorized by Commission 804 C.M.R. § 1.13(1)–(2)
A Complaint will be reviewed by the MCAD for problems with “standing of the par-ties, timeliness of the filing, or other matters upon which jurisdiction may depend.” The MCAD will not investigate if it lacks jurisdiction over the Complaint or if the Complaint “contradicts an inference of discrimination” or “is totally unbelievable on its face.”
If a formal investigation is warranted, investigation by the MCAD must commence within 30 days of authorization of formal investigation by the MCAD.
If a formal investigation is not warranted, the MCAD will notify the complainant and will issue the complainant authority to pursue an action in court.
Predetermination Mediation
The Commission encourages settlement of all claims. Before or during the investiga-tion, commission staff is available for predetermination mediation sessions.
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Predetermination Discovery 804 C.M.R. § 1.13(7)
In appropriate cases, the MCAD may permit the parties to conduct predetermination discovery. Parties are limited to
• 15 interrogatories,
• 15 requests for documents, and
• 6 hours of deposition.
Investigative Conference 804 C.M.R. § 1.13(5)
The MCAD may convene an investigative conference to obtain evidence, identify issues in dispute, ascertain the positions of the parties and explore the possibility of negotiated settlement.
Probable Cause—The MCAD will issue a finding of probable cause where the In-vestigating Commissioner finds that “there is sufficient evidence upon which a fact-finder could form a reasonable belief that it is more probable than not that the re-spondent committed an unlawful practice. In making this determination, disputes involving genuine issues of material fact are to be reserved for determination at hearing.”
Lack of Probable Cause—Otherwise, the MCAD will issue a finding of lack of prob-able cause.
Administrative Closure—The MCAD can close the case where (1) the respondent is bankrupt; (2) a party has died; (3) the Commission cannot locate a party; or (4) the complainant unreasonably refuses to cooperate with the processing of the case. 804 C.M.R. § 1.15(5).
Lack of Jurisdiction—The MCAD can also close a case if it determines that it does not have jurisdiction over the claim (e.g., if the employer does not have a sufficient number of employees to be covered).
Reconsideration of Investigative Disposition 804 C.M.R. § 1.15(7)(c)–(d)
Respondent may move for reconsideration of a probable cause finding at any time prior to the date ordered by the investigatory commissioner for submissions pursuant to 804 C.M.R. § 1.20(2).
Complainant may appeal a determination of lack of probable cause within 10 days of receiving notice of the determination.
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IN CASES WHERE PROBABLE CAUSE IS FOUND:
Conciliation 804 C.M.R. § 1.18
Upon a finding of probable cause, the MCAD attempts to “eliminate the unlawful practice complained of through conference, conciliation, and persuasion.”
The MCAD may close the case where the complainant rejects a settlement offer that the MCAD deems reasonable. 804 C.M.R. § 1.18(4).
If the case is closed pursuant to this provision, the complainant may bring an action in court (so long as the court filing statute of limitations deadline has not passed).
Post-determination Discovery 804 C.M.R. § 1.19
After a probable cause determination, either party or the MCAD counsel may file a motion with the Investigating Commissioner requesting the right to conduct post-determination discovery, including interrogatories, document requests, and deposi-tions, to be completed prior to the Certification Conference.
Certification Conference 804 C.M.R. § 1.20
Where the MCAD’s conciliation efforts fail, the investigating commissioner deter-mines whether certification of outstanding issues is in the public interest. If so, the commissioner certifies the case for public hearing.
Waiver of Complainant’s Right to Remove 804 C.M.R. § 1.15(2)(c)
Within 30 days of certification of the case to public hearing, the hearing commis-sioner will require the complainant to waive his or her right to remove the complaint to state court.
Public Hearing 804 C.M.R. § 1.21
The rules of evidence do not necessarily apply, except for the rules of privilege.
Briefs and/or proposed findings of fact may be filed by parties or by any interested party before, during or after the public hearing.
Full Commission Review 804 C.M.R. § 1.23
Any party aggrieved by the final decision of a hearing commissioner or hearing of-ficer may, within 10 days of receipt of the decision, file a notice of requested review.
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Within 30 days of receipt of the decision, the aggrieved party shall file a petition demonstrating why that party is aggrieved.
The decision of the full commission on appeal from the decision of the hearing commissioner shall constitute the final order of the Commission.
Judicial Review 804 C.M.R. § 1.24
Any person aggrieved by decision of the full commission may apply pursuant for judicial review of the agency’s action pursuant to G.L. c. 151B, § 6 and G.L. c. 30A.
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EXHIBIT 11C—Ten Frequently Asked Questions
1. Does Massachusetts recognize a cause of action for “wrongful termination” or “unjust dismissal”?
No. In Massachusetts, there is no recognized cause of action for “wrongful termina-tion” or “unjust dismissal,” although these terms are often used in a general way to describe legal actions arising out of the termination of employment. To be actionable, a claim must arise under either a statute or common law. An example of a statutory claim is an action brought under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621; a typical common law cause of action is breach of contract.
2. What steps should be taken before an initial client meeting with an individual about an employment matter?
The client should be prescreened to determine whether there is a conflict of interest, whether any statutes of limitation are about to run and whether the matter is one more appropriately handled by another attorney or the client’s trade union.
As part of the prescreening, the client should be advised to gather documents for the initial meeting. Documents to be gathered include résumés, offer letters, employment contracts, job descriptions, employee handbooks, benefits records, and personnel records (including performance reviews, warning letters, and any termination notice).
The client also should be instructed to prepare a chronology. Review of the chronol-ogy will help focus the initial meeting.
3. What purposes are served by an employer’s use of internal dispute resolution?
Internal dispute resolution processes can vary widely. In general, internal dispute resolution can be highly valuable in (1) increasing the chances of resolving a dispute at the lowest possible level, thereby saving time, effort, and money and maintaining workforce morale; (2) acting as a safety valve and early warning system to alert the employer of potential problems before they get out of hand; and (3) giving the em-ployee the opportunity to be heard.
4. Are employment-related claims always first submitted to the Massachusetts Commission Against Discrimination (MCAD), the Equal Employment Oppor-tunity Commission (EEOC), or the courts?
Employees asserting statutorily based claims against their employers often must first file their claims with the appropriate administrative agency before pursuing such claims in court. The type of employment-related claim will determine the appropriate administrative agency. For example, in addition to the MCAD and the EEOC (the state and federal agencies that govern employment discrimination claims), unem-ployment compensation claims must be filed with the Department of Unemployment Assistance, and workers’ compensation claims must be filed with the Department of
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Industrial Accidents. Other agencies with jurisdiction over certain employment-related claims include the Civil Service Commission, the National Labor Relations Board, the Labor Relations Commission, and the Attorney General’s Office.
5. How soon must an MCAD complaint be submitted following a discriminatory action taken against the employee?
In general, claims of discrimination must be filed with the MCAD within 300 days of notice of the discriminatory act. G.L. c. 151B, § 5 (as amended by 2002 Mass. Acts c. 223 (approved Aug. 7, 2002)).
6. Does the MCAD employ any alternative dispute resolution methods as part of its procedures?
Yes. If the commission issues a probable cause finding (finding sufficient evidence for a reasonable belief that the respondent committed an unlawful practice), the commission conducts a conciliation meeting between the parties. In that conciliation meeting, the MCAD will attempt to assist the parties in negotiating a resolution of the dispute. Where the complainant rejects a settlement offer that the MCAD deems reasonable, the commission may close the matter and allow the complainant to pur-sue the matter in court.
Under MCAD regulations, additional time is allowed for the filing of a complaint where a voluntary mediation agreement has been entered into prior to the required filing date. However, such agreements must comply with specific MCAD regulations. See 804 C.M.R. § 1.10(2), (3).
7. Has the use of arbitration in employment matters been increasing in recent years?
Yes. Arbitration traditionally has been a common feature of collective bargaining agreements, and there is a well-developed body of law on the arbitration of labor disputes. In recent years, however, arbitration has become increasingly common out-side of the collective bargaining context, and practitioners now frequently encounter contracts containing arbitration provisions.
8. Are pre-dispute arbitration clauses in employment agreements enforceable?
Under a number of circumstances such clauses have been found to be enforceable; however, the law in this area continues to develop. Practitioners should research this issue in relation to the particular forum, the cause of action being considered and the circumstances of the case.
In Circuit City, Inc. v. Adams, 532 U.S. 105 (2001), the Supreme Court held that the Federal Arbitration Act, which compels enforcement of a wide range of written arbi-tration agreements “save upon such grounds as exist in law or equity for the revoca-tion of any contract” and which preempts state law to the contrary, applies generally to arbitration provisions in employment agreements, except for agreements covering seamen, railroad employees, and other transportation workers engaged in foreign or
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interstate commerce. In EEOC v. Waffle House, Inc., 534 U.S. 279 (2002), the Court held that the EEOC may pursue victim-specific judicial relief on behalf of an employee who has entered into a pre-dispute arbitration agreement with his or her employer.
9. Under what circumstances will an MCAD decision be overturned by the Mas-sachusetts courts?
The decision of the agency is upheld unless the court determines that the substantial rights of any party may have been prejudiced because the agency decision was in violation of constitutional provisions; in excess of the statutory authority or jurisdic-tion of the agency; based upon an error of law; made upon unlawful procedure; un-supported by substantial evidence; or arbitrary or capricious, an abuse of discretion or otherwise not in accordance with law.
10. Is an administrative or a judicial forum better for your client’s discrimina-tion case?
There is no generally applicable rule, but there are a number of differences that prac-titioners faced with this choice should keep in mind. For example, punitive damages—which may be available in court—are not available at the MCAD. As another ex-ample, the MCAD employs a “probable cause” standard and process that differs from the standards and procedures used for motions to dismiss and summary judg-ment in civil litigation. Discovery provisions, evidentiary standards and available remedies will likely differ as well. The choice of forum may also determine whether the case will be heard by a jury, as opposed to, for example, the commissioners and hearing officers of the MCAD.
