A recent Massachusetts Supreme Judicial Court decision has expanded the scope of potential retaliation claims under the Massachusetts Fair Employment Practices Act. In Psy-Ed Corp. v. Klein, the court held that an ex-employee can bring a retaliation claim against a former employer for actions taken after the termination of employment, and that instituting baseless litigation against an ex-employee can serve as the basis for a retaliation claim.
The court reasoned that the statute did not require that an employment relationship exist "at the time of the wrongful conduct, or at any other time." The court also concluded that filing baseless litigation could serve as the "adverse action" sufficient to support a claim for retaliation.
The Psy-Ed ruling opens the door to new types of retaliation claims against Massachusetts employers based on alleged conduct that occurs long after the end of the employment relationship. Employers could be subject to post-employment retaliation claims for things such as giving a negative job reference or informing a former employee's new or prospective employer about the former employee's protected activity.
An employee may prevail on a retaliation count without a finding of discrimination, making retaliation claims particularly problematic for employers.To protect themselves from liability employers should implement strong anti-retaliation policies. While employers may be tempted to file a counterclaim against a former employee who has initiated a lawsuit, they should always ensure that a solid evidentiary basis exists to support the claims bring and damages they seek. Filing a baseless claim against a former employee could also result in a retaliation claim.
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