High court construes tenure contract to constrain faculty salary cuts at Tufts medical school

TUSM Arnold Wing, 2012, Boston
John Phelan via Wikimedia Commons CC BY 3.0

Academic freedom won a rare court victory last week when the Massachusetts high court allowed claims that Tufts University improperly reduced the salaries of tenured medical faculty.

(As an aside, I wrote just yesterday about academic freedom in the case of FAMU's efforts to fire the law school's first and only tenured Latina professor for speaking on a matter of public concern, namely, the school dean's contentious resignation. Please consider signing the letter in support of Prof. Maritza Reyes.)

In the scrappy remains of what academia has become, the Tufts School of Medicine (TUSM) in the late 2010s told eight faculty that they would have to bring in external research support to cover half their salaries and their lab space, or they would see their salaries and space cut. The eight plaintiffs didn't meet the new standards, and TUSM imposed the cuts.

As things usually go in these cases, the trial court awarded summary judgment to the defense. Much responsibility for the sorry state of academic tenure in the United States can be laid at the feet of its once defenders, such as the American Association of University Professors (AAUP), which became so enamored with procedural arcana in the early 20th century that it forgot the substantive rights it was supposed to be fighting for. I wrote in 2011 about this problem and the urgent need to address it then. The law too often says that as long as a university dots its is and crosses its ts, it can fire for any reason.

The typical bulwark in the tenure contract is simply that firing must be "for cause," a wishy-washy term that reduces the contract practically to year-to-year employment. A university can disavow termination as a violation of civil rights, then turn right around and point to bad breath and a disagreeable disposition as sufficient "cause." Judges usually are eager to defer to universities, reasoning that workers could strike better bargains if they wanted to; they have the AAUP working for them, after all.

Just such ambiguity contributed to the plaintiffs' grief in the instant case. The Massachusetts Supreme Judicial Court (SJC) opined that the term "economic security" in the Tufts tenure contract "is ambiguous." Upon the ambiguity, the term could be not be said to include a guarantee of lab space, and the lower court so concluded correctly.

A state high court typically would send plaintiffs packing wholesale upon deference to university interpretation of the contract. However, the SJC reversed and remanded, concluding that "more evidence is required regarding the customs and practices and reasonable expectations related to salary and full-time status for tenured professors at TUSM, and even other universities and medical schools," to determine whether the compensation reduction violated the contract.

Massachusetts is a labor-friendly state, for better and for worse. The courts are permissive, for example, in "wrongful termination" tort suits that would be shut down in a flash in other states. Here, the SJC was willing to look for evidence that other states' courts would eschew breezily. While I'm usually hesitant to see a court broadly construe a meticulous private contract, I'll here let myself be bettered by anxiety over academic freedom facing evisceration by the looming dismantling of faculty job security.

The plaintiffs in the Tufts case had been awarded tenure at different times, from 1970 to 2009. The SJC looked to the TUSM faculty handbook, which usually is construed as contractual in higher ed employment law. The handbook includes an academic, freedom, tenure, and retirement policy that incorporated language verbatim from the 1940 AAUP Statement on Principles of Academic Freedom and Tenure.

The 1940 statement speaks eloquently to the importance of "freedom of teaching and research and of extramural activities," as well as "a sufficient degree of economic security." All good. But the statement characteristically left "the precise terms and conditions" to ad hoc negotiation, as long as termination is permitted "only for adequate cause" and the result of some kind of review process. That's long left the tenured professor in an AAUP-style contract to wonder whether anything would stop the university from reducing salary to a penny and relocating the professor's office to the boiler room.

When Tufts presented a faculty hearing board with a multi-million operating deficit in the late 2010s, the board was more than willing to throw some faculty under the bus to save the rest. The union at my school did the same thing during the pandemic: eagerly approving faculty salary cuts, and even asking that they be higher, rather than calculating how many quarter-million-dollar-a-year assistant-associate-vice-provost-chancellors we might do without instead. 

Thus, another problem with tenure as we have it is that the AAUP, enraptured as it was and is with collectivism, never thought to consider the need to protect faculty from each other. Unlike the First Amendment, AAUP academic freedom allows the collective to run roughshod over dissenting voices.

With due process duly delivered, the Tufts plaintiffs saw salary reductions from 10 to 50%.

Taking stock of the matter, the SJC concluded, again, exceptionally, that "economic security is an important substantive provision of the tenure contract and not a prefatory or hortatory term." The court relied on the 1940 statement and strained in structuralist contract construction to distinguish a 2022 New York decision to the contrary. 

The record at Tufts probably does not support plaintiffs in resisting any salary reduction, but, the SJC concluded, at least created a question of fact as to how much is too much.

The case is Wortis v. Trustees of Tufts College (Mass. Mar. 14, 2024). Chief Justice Scott L. Kafker wrote the unanimous opinion.

Florida A&M moves to fire Latina law prof who spoke on public concern; Hispanic law students resist

You may review and sign on to a letter of the FAMU Hispanic American Law Student Association opposing Reyes's termination here. 

Prof. Maritza Reyes

My colleague Professor Maritza Reyes, who is tenured at the Florida A&M (FAMU) College of Law, is fighting alongside students and other allies to save her job and to preserve academic freedom.

Reyes has been notified of the school's intent to dismiss her for doing her job in faculty governance. Reyes commented, professionally and appropriately, in a community email discussion of the abrupt, contentious, and institutionally embarrassing resignation of the law dean at FAMU in February.

FAMU apparently did not like what Reyes had to say. In a plain violation of academic freedom, the school proferred the email discussion as the reason to terminate a tenured professor.

I have written many times, since 2011, about the failure of universities to recognize academic freedom in spaces "penumbral" to published research and classroom teaching, namely faculty governance. In the same vein, Professor Keith Whittington wrote recently about the importance of protecting "extramural" academic speech.

Reyes is an accomplished and highly respected law teacher—thus, just the sort who attract condemnation in the academic culture—who is treasured by generations of students and has especially made a difference for persons of color in law schools and legal practice. She is FAMU's first and only tenured Latina law professor. In 2022, she founded the Graciela Olivárez Latinas in the Legal Academy ("GO LILA") Workshop, which she discussed in 2023 for AALS Women in Legal Education.

Students and alumni are leading the resistance to Reyes's termination. Please review and consider signing on to the following letter.  You can share the letter further with this link: https://forms.gle/VUnYPKiMwyWtMDJx8, or via The Savory Tort.

(This post revised and updated on Mar. 19, at 5:40 p.m.)

---

Dear President Larry Robinson and Provost Allyson Watson:

We, the undersigned members of the Florida Agriculture and Mechanical University (FAMU) Hispanic American Law Student Association (HALSA), joined by fellow students, alumni, allies, and friends, respectfully request that you rescind your intent to dismiss College of Law Professor Maritza Reyes (Professor Reyes) from her tenured position. For the past fifteen (15) years, Professor Reyes has been a caring professor and has made excellent contributions to the school, especially its students. Professor Reyes has also served as HALSA's faculty advisor for many years.

Professor Reyes is an accomplished teacher, scholar, and member of the legal academy and community. She began her employment in the FAMU College of Law as a tenure-track assistant professor of law in 2009, earned tenure in 2015, and is now a tenured, full professor of law (the highest faculty rank). FAMU has evaluated Professor Reyes's record during many formal evaluative processes, including applications for promotion to associate professor, for tenure, and promotion to full professor; annual reviews; and, most recently, post-tenure review. Professor Reyes has demonstrated consistent excellence and productivity in scholarship, teaching, and service. She has too many accomplishments to list here, including being recognized in the U.S. Congressional Record for her service to our community. You are well-aware of her many accomplishments including through all of the above listed evaluations.

We were heartbroken and outraged to learn that Provost Allyson Watson (Provost Watson), by letter dated February 16, 2024 (the "Notice"), informed Professor Reyes of the University's intent to dismiss her from her tenured position. According to FAMU Regulation 10.120(2)(c), the "Contents of Notice" must include the following information: "A list of documents or written explanation on which the charges are based; and a statement that documents shall be available to the employee upon request." The documents Professor Reyes received consisted of emails that were sent to the entire College of Law Community during the period of February 1, 2024 to February 5, 2024. The entire College of Law Community (faculty, staff, and students) received the emails after then College of Law Dean Deidré Keller (Dean Keller) opened this email forum on February 1, 2024 to provide notice of her resignation effective immediately. Several professors, including Professor Reyes, and three students participated in these communications and sent emails to the entire College of Law Community. The use of email forums/listservs to the entire College of Law Community was not prohibited. Professor Reyes's emails were informative, professional, and timely. They helped bring transparency and accountability regarding Dean Keller's resignation, a matter of institutional and public importance. The Tallahassee Democrat initially reported about Dean Keller's resignation on February 2, 2024. Subsequently, Dean Keller provided her letter of resignation to this newspaper, which published it in a second article on February 6, 2024. These materials were readily available online via the newspaper's website.

In response to Professor Reyes's contributions via emails about Dean Keller's resignation, Provost Watson issued a Notice of intent to dismiss Professor Reyes from her tenured position. It seems to us that Provost Watson targeted Professor Reyes for the content of her speech and sought to silence her voice and future contributions in the FAMU College of Law. In a matter of days, Provost Watson charged Professor Reyes for dismissal without allowing her an opportunity to respond to a formal complaint, go through an investigation, receive meaningful due process, and get a report. To us as law students, the way Provost Watson has handled this situation screams of injustice and lack of due process.

Many students and alumni describe Professor Reyes as an exceptional educator who made a lasting and meaningful impact on their law school experiences and legal careers. She always set high standards and would provide the guidance and skills necessary to reach them. She also inspired students to achieve their individual levels of excellence. Some of us made it through difficult situations during law school thanks to her unwavering support. Professor Reyes has also been an advocate for student organizations. Therefore, if your intent to dismiss Professor Reyes comes to pass, you will harm past, current, and future FAMU College of Law students by taking away an excellent professor who has been our teacher, mentor, advocate, ally, supporter, and friend. You will also harm the law school, including with negative publicity. You have already disrupted the high-caliber teaching law students expected to receive when they registered for Professor Reyes's courses. You abruptly replaced her with less-credentialed and less-experienced instructors who had never taught in a law school before. Many of us will be further traumatized by Professor Reyes's dismissal. We cannot remain silent in the face of such injustice.

There are currently twenty (20) tenured professors (associate and full) in the College of Law. Professor Reyes was the first and thus far only Hispanic professor hired in the tenure track and subsequently tenured in the FAMU College of Law. She has served as HALSA's dedicated, supportive, and highly competent faculty advisor. According to the FAMU College of Law American Bar Association 2023 Standard 509 Required Disclosures, Hispanic students make up 25% of the total law student body. It is important that Hispanic students be appropriately represented in the law school. While this letter is spearheaded by HALSA's Board, we are being supported in our efforts by students and alumni of diverse backgrounds who appreciate and respect Professor Reyes's teaching, mentoring, and support.

There is a strong sense among the student body that an injustice is happening in view of all of us. On February 27, 2024, students met with FAMU College of Law Interim Dean Cecil Howard and protested the intended dismissal of Professor Reyes. Interim Dean Howard responded that the decision was made by Tallahassee Administrators to whom students should voice their protests. This is what we are doing via this open letter. We have distributed this letter widely for signatures by students, alumni, allies, friends, and supporters of justice everywhere. Please hear us when we tell you that the intended dismissal of Professor Reyes is a grave injustice. You have the power to stop this intended wrong. Please do so!

We respectfully demand that you keep Professor Maritza Reyes in the tenured faculty position she earned. She has done nothing warranting dismissal. We also demand that you grant Professor Reyes's request for a public meeting regarding her intended dismissal.

[Sign.]

Conference on Workplace Mobbing to convene in July, aims to establish mobbing as discrete field of study

PLEASE JOIN US IN NIAGARA IN JULY,
AND SPREAD THE WORD TO YOUR NETWORKS!

The first Niagara Conference on Workplace Mobbing will convene July 22-24, 2024, at Niagara University in Niagara, New York, and registration is now open for participation and presentation proposals, in-person and hybrid.

The conference is sponsored by Niagara University and co-sponsored by the Society of Socio-Economists. Additional sponsorships are invited; please contact conference registrar Qingli Meng, in criminology at Niagara University, via the conference website.

Mobbing is a form of group abuse of an individual and has been documented in studies in sociology and related fields for almost half a century. Mobbing is associated particularly with workplaces, where persons act in concert to effect a victim's alienation and exclusion from the community.

Workplace mobbing is especially prevalent in academic institutions. A sociologist and expert on mobbing, Professor Kenneth Westhues has studied the phenomenon and why the academic work environment is especially fertile soil for mobbing behavior. Westhues maintains the website, Workplace Mobbing in Academe.

While forms of interpersonal abuse such as harassment and bullying have found traction in law and become recognized in popular culture as wrongful, mobbing has not yet come fully into its own. Mobbing behaviors are complex, involving multiple perpetrators with variable states of culpability, so mobbing is not always as readily recognizable as a more abrupt infliction, such as bullying. Like harassment and bullying victims, especially before the wrongfulness of those acts were widely acknowledged, mobbing victims tend to self-blame and self-exclusion, so might not bring mobbing behaviors to light.

A purpose of the planned conference, therefore, is to disentangle mobbing from adjacent behaviors, such as bullying, harassment, and ostracism. By recognizing mobbing as a discrete phenomenon and focusing study on mobbing as a cross-cutting scholarly sub-field, fields such as psychology, economics, organizational management, employment law, and criminal law can recognize and respond to the problem of mobbing more effectively, bringing relief to victims and preventing victimization to begin with.

A welcome and invitation at the Niagara Conference on Workplace Mobbing website explains the conference mission better than I have here, as resources available through Westhues's website well explain mobbing and its defining characteristics.

I am chairing the Scientific Committee of the Niagara Conference on Workplace Mobbing . The interdisciplinary committee also comprises Dr. Meng; Dr. Westhues; Robert Ashford, in law at Syracuse University; Walter S. DeKeseredy, in criminology at West Virginia University; Joseph Donnermeyer, in criminology at Ohio State University; and Tim Ireland, provost at Niagara University.

The conference is grateful for technical and logistical support from Niagara University's Yonghong Tong, PhD; Michael Jeswald, MBA; Valerie Devine, assistant director of support and web development; Michael Ebbole, audio visual systems coordinator; William Stott, audio visual systems specialist; and Chang Huh, PhD.

The Niagara Conference on Workplace Mobbing is a project of Conference on Workplace Mobbing Ltd., a New York nonprofit organization.

Malaysian court upholds civil liability for security firm after employee-bodyguard shot, killed own client

With attenuated liability theories arising from contemporary gun violence proliferating—in lawsuits against parents, schools, sellers, and government—a case of vicarious liability for gun violence in Malaysia caught my attention.

In October 2022, the Malaysian Federal Court affirmed a liability award to a shooting victim against the security firm that employed the shooter.

In 2016, businessman Ong Teik Kwong, whom police investigated for ties to organized crime but never charged, was in a car in George Town, Penang Island, Malaysia, when he got into an argument with his bodyguard, Ja'afar Halid. Halid shot and killed his client Ong, then proceeded to shoot seven other people, killing two.

One of the surviving shooting victims was the plaintiff in the instant case, Mohamad Amirul Amin Bin Mohamed Amir. A news videographer for Radio Televisyen Malaysia, Amirul was passing on a motorcycle and stopped to aid one of the victims. He told the courts that he did not know Halid was armed. Halid shot Amirul. Star TV News reported the lower court outcome in 2019.

Halid was tried, convicted and sentenced to death by hanging. I can find no subsequent report of whether or when execution occurred.

Amirul meanwhile won compensation against GMP Kaisar Security upon a theory of respondeat superior, or vicarious liability running through employment. The Malaysian legal system is a hybrid of colonial common law and customary and Islamic law. The law of obligations with regard to respondeat superior is substantially a product of British common law, and the key test for respondeat superior is the same: An employer may be held liable for the acts of an employee within the scope of employment.

My torts class and textbook introduce respondeat superior in the study of negligence, when many theories of vicarious liability become salient. It's important for students to learn, though, that respondeat superior is not a negligence doctrine. It operates irrespective of culpability.

That said, it's often difficult for plaintiffs to prove respondeat superior liability when an employee commits an intentional act, especially a criminal act of violence. Criminal violence is not usually part of someone's job, so the employee-perpetrator acts outside the scope of employment.

That's what makes the Malaysian case interesting. On the one hand, as a bodyguard, Halid had one of those rare jobs in which committing an act of violence, even a murder, might come within the scope of employment. On the other hand, Halid killed the very man he was supposed to protect.

Those facts suggest that the case would fail upon the usual analysis. But the lower and higher Malaysian courts focused on the carrying of a firearm rather than on the act of killing. In Malaysia, unlike the United States, there is no right to bear a firearm. Licenses are attainable, but the system is restrictive.

Federal Court Judge Harmindar Singh Dhaliwal reasoned:

Now, Jaafar's actions may have been unauthorized by his employer but the pertinent question to ask is whether Jaafar's actions in unlawfully discharging his firearm and causing injury to Amirul was so closely connected with his employment that it would be fair and just to hold the employer vicariously liable. On the facts of this case and for the reasons we have already stated, the answer must be yes. To put it in another way, Jaafar's wrongful act was not independent from the task he was employed to do.

Relying on a Canadian precedent, the court offered a further rationale that squares well with the scope of civil liability in American tort law.

The Supreme Court of Canada ... explain[ed] that vicarious liability is generally appropriately involved where there is a significant connection between the creation or enhancement of risk and the wrong that flows from the risk. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is a risk to another or to others within the range of apprehension.

The above-referenced cases arising from gun violence in the United States involve direct liability, not vicarious liability. They allege that the defendants were themselves negligent, and that their negligence proximately caused the later intentional shootings. The causal link is not easily proved.

Despite the distinction, there is a common concept animating the imposition of liability upon the attenuation of employment and upon the attenuation of causation. Scope of employment posits essentially that the pursuit of the employer's ends, if not the culpability of the employer, proximately resulted in the employee's injurious act.

All the same, the Malaysian Federal Court's conclusion would be difficult to reach on comparable facts in the United States. With gun possession a matter of license rather than right, it was easier for the Malaysian court than it would be for an American court to focus on the entrustment of the firearm rather than the use of it. As a matter of strict vicarious liability, rather than direct negligence, an American court would not be persuaded easily to effect the same shift in focus.

The case is GMP Kaisar Security v. Amirul, Civ. App. No. 02(f)-44-07-2021(P), [2023] 1 MLRA 99 (FCJ Oct. 18, 2022).

Governor's proposed pay hikes evince typical bureaucratic ignorance of how working people earn

Governor Dan McKee
(Kenneth C. Zirkel CC BY-SA 4.0 via Wikimedia)

Rhode Island Governor Dan McKee's proposal for huge increases to state administrators' pay, on the scale of revising $135,000 upward to $190,000, shows ignorance of how ordinary working people earn.

Our present condition of oppressive inflation has us all thinking a lot about pay. For ordinary working people in America, the only way to avoid an effective pay reduction over time is to change jobs. (Hat tip at my wife for putting words to that observation.) Employers demand "team" or "family" loyalty, 24/7 availability, and uncompensated overtime. But the loyal employee winds up being underpaid for overworking.

Raises don't keep up with inflation, if there are raises at all. In my own compulsorily union job, 2% raises are the contract standard. That rate tracks inflation for about the last 10 years, on average, but not for the preceding 10 years, when the union negotiated the rate, nor for the present year. The union admonishes that the university would give zero were it not for, of course, the union, so workers should be grateful for losing less badly. Then when the pandemic hit, the union asked for bigger pay cuts than the university proposed. So the union lost all credibility with me.

The "family" loyalty employers demand works only one way. At the first sign of hardship, jobs are cut; people in the lower ranks are disposable. Business cries out for relief form taxpayers, even as bottom lines bulge. Profiteering, not necessity, is pushing the present inflation, and there is no will in Washington for protection against price gouging. No wonder some workers are at last wising up to "quiet quitting," which is not quitting at all.

I make OK money, less than market rate for what I do, and less than I was promised since my employer, with union assent, reneged on an agreement, but a lot more than most Rhode Islanders. And I think I'm pretty good at what I do. You can't help but learn something with 25 years' experience.

Yet if I left my job, my employer would be pleased to replace me with someone lacking experience and paid two-thirds or less. Indeed, the norm in legal academia, in step with the private marketplace, is to prefer a 20-something lawyer out of a clerkship over a lateral candidate. At that, there would be young people lined up for my job, eager to be part of the "family," and understandably so in a market that has long forgotten what it means to negotiate terms of employment. I cannot move laterally even if I take the pay cut, because it's not just the discount price employers are after. They want a newly beholden member of the "family."

That's the reality for most American workers: employers expecting commitment and performance akin to indentured servitude from people who work cheap because they know they're easily replaceable for less.

So when I see pay raises of the kind that Governor McKee is proposing, supposedly for the purpose of recruitment and retention, I am outraged. In this New England market, there are plenty of bright, talented people right out of university, law and graduate school, some of them my former students, who are eager to test their skills in public leadership. The present $135,000 pay, double the average state salary, would be a dream offer.

That's not to say, of course, that I wouldn't rather see the market treat people fairly and reward talent and experience. I would rather that everyone in the workforce had pension security, not just public sector workers regardless of merit, willing to commit to one job and place for 20 years; that everyone had access to high-quality healthcare, not just people who let an employer walk all over them because they're afraid of dying from a recurred cancer if they change insurers; and that everyone would have the opportunity to earn a living wage in fewer than 40 hours per week.

But that's not our world. Well, not our country. So in the meantime, I don't care to see public-sector leaders privileged by terms of employment they are unable or unwilling to establish for the rest of us.

McKee's Republican opponent accused him of buying votes. I'm not sure that's true. There aren't enough state department heads to turn an election, and I doubt they have that much sway behind the curtain over the voters who work for them. 

I think it more likely that McKee has calculated that in the present political climate, his reelection as a Rhode Island Democrat is effectively a done deal. So he has the political capital to spend to shore up loyalty in an executive branch that he claimed this term by succession rather than election. (Independents such as me are barred from primary voting in Rhode Island, so I've had no say yet.)

Either way, raises for already well compensated state leaders will be an insult to taxpayers.

Shoe on other foot as US claims sovereign immunity in foreign court for firing Malaysian embassy worker

The U.S. Embassy in KL commemorates flight MH17 in 2014.
(Embassy photo, public domain, via Flickr)

Malaysian courts have been wrestling with the big bear of foreign sovereign immunity in an ursa minor case arising from the dismissal of a security guard from the U.S. Embassy in Kuala Lumpur.

As a torts and comparative law teacher, I'm interested in how courts manage foreign sovereign immunity. But most of the cases I read are about foreign-state respondents in U.S. courts. I suppose the inverse, the United States as respondent in a foreign court, happens often. But it doesn't often make my newsfeed.

Well, this story did. The shoe is on the other foot with the United States seeking to evade the hearing of an employment grievance in Malaysian courts.

Consistently with international norms, in the United States, the Foreign Sovereign Immunities Act (FSIA) (on this blog) generally codifies sovereign immunity for foreign states in U.S. courts. But an exception pertains for "commercial activity." 

The commercial exception, also consistent with international norms, only makes sense. When a foreign country is acting like any other commercial actor, say, buying toilet paper for the mission restroom, it should not be able to claim sovereign immunity to override its obligation to pay for the toilet paper (contract), nor to escape liability for its fraud in the transaction (tort). Sovereign immunity is rather reserved for when a state acts as a state, doing things only states can do, such as signing treaties and, however unfortunately, waging war—usually.

The exception is easier understood in the abstract than in application. In a case bouncing around the Second Circuit, and reaching the U.S. Supreme Court in 2018 on a related but different question, Chinese vitamin makers claim immunity from U.S. antitrust law. The respondent makers say that they are agents of the Chinese state insofar as they are compelled by Chinese economic regulations to fix prices. U.S. competitors see the cut-rate pricing as none other than anti-competitive commercial activity. The question arises under trade treaty, but the problem is analogous to the FSIA distinction.

Also regarding China, the commercial activity exception was one of the ways that state lawsuits against the People's Republic over the coronavirus pandemic tried to thread the needle on sovereign immunity. In the lawsuit filed in 2020 by the State of Missouri against the PRC filed in 2020, the Missouri Attorney General characterized the Chinese lab in Wuhan as a commercial healthcare enterprise. The district court disagreed in July, and the AG is appealing.

In the Malaysian case, according to the allegations, the U.S. Embassy gave no reason when it terminated a security guard in 2008 after about a decade's service. The security guard probably would not be owed any explanation under U.S. law. But the Malaysian Industrial Relations Act is not so permissive, authorizing complaints to the labor authority upon dismissal "without just cause or excuse."

The opinion of the Malaysian Court of Appeal in the case hints at some bad blood in the workplace and a bad taste left in the mouth of the dismissed guard: "He said he had been victimised by another staff named Rama who had tried to tarnish his good record as he had raised the matter of unreasonable management of the security post.... He said he could not believe that the US Embassy that is recognised the world over as the champion of human rights could have done this to a security guard like him."

Inexplicably, "a long languishing silence lasting some 10 years" followed the administrative complaint, the Court of Appeal observed. "Nobody involved and interested in this case heard anything from anyone. It is always difficult to interpret silence. That silence was broken with a letter from the DGIR [labor authority] calling for a conciliation meeting [in] September 2018.... There was no settlement reached.

"Unbeknown to the workman, the Embassy had [in] March 2019 sent a representation to the DGIR arguing that sovereign immunity applied and that the matter should not be referred at all to the Industrial Court." The United States thereafter succeeded in having the case removed to the Malaysian high court, a general-jurisdiction trial court.

The high court dismissed the case on grounds of U.S. foreign sovereign immunity. The Court of Appeal reversed, holding that the case should not have been removed. The Court of Appeal remanded to the Industrial Court, a specialized labor court, to take evidence on the immunity question. The Malaysian Federal Court recently affirmed the remand, lawyers of Gan Partnership in Kuala Lumpur have reported (Lexology subscription).

Like the FSIA, Malaysian law on foreign sovereign immunity distinguishes commercial activity, jure gestionis, from state action, jure imperii. The dismissed guard argues that his was a simple employment contract, so the United States was acting in a commercial capacity and is not entitled to sovereign immunity. The United States argues that the security of its embassy is a diplomatic matter entitled to the exercise of sovereign discretion.

The case in the Court of Appeal was Letchimanan v. United States (May 18, 2021). Gan Khong Aik and Lee (Ashley) Sze Ching reported the Federal Court affirmance to the International Law Section of the American Bar Association for Lexology on August 30 (subscription). Khong Aik and Sze Ching wrote about the Court of Appeal decision, United States v. Menteri Sumber Manusia (Minister of Human Resources) Malaysia, in July 2021 (Lexology subscription), and with Foo Yuen Wah, they wrote about the high court decision in August 2020 (Lexology subscription).

Grubhub drivers signed away right to sue, court rules

Haydn Blackey via Flickr CC BY-SA 2.0

Grubhub drivers signed away their right to sue on unfair wage claims, the Massachusetts Supreme Judicial Court ruled today.

Plaintiff Grubhub drivers complained that the company is stiffing them on minimum wages and tips under state law and, worse, retaliating against drivers who complain.

I have no knowledge of the validity of these claims, but I worry a lot about the exploitation of gig workers in our economy. This exploitation is a big slice of the broader problem of employers' over-classification of personnel as independent contractors to avoid having to provide fair wages and benefits. Sometimes employers cross the legal line and sometimes they don't; regardless, the effect of even the lawful leeway contributes to our glut of working people who cannot make ends meet, put us all at risk with insufficient insurance for healthcare and accidents, and spend so much on necessities as to have paralyzed American socioeconomic mobility. Our woefully outdated measures of employment fail to reflect this problem, which is why media pundits and Washington pointy-heads scrunch their faces in confusion over how we can have favorable job numbers and an "it's the economy, stupid" political crisis happening at the same time.

Collateral to labor exploitation, we have long had the problem of our court system being subverted by the supposed freedom to contract. At this point, we all know without even having to read the fine print that every terms-and-condition box we check, just like every product we liberate from shrinkwrap, binds us to arbitrate any disgruntlement and frees our adversaries from ever having to answer to us in the courts, which were designed for that very purpose. Many of us know furthermore that the terms of arbitration profoundly favor the respondent companies, both substantively, evidenced empirically by companies' overwhelming win rates, and, often, procedurally, by way of inconvenient venues, arcane procedures in contrast with small claims courts, and the burdens of transaction costs.  I've cited the definitive books on this subject by Nancy Kim and Margaret Jane Radin so many times, that, frankly, I just don't have the energy today to look up their URLs again.  Let's instead invoke the tireless Ralph Nader and his persistent admonition that we have undermined the Seventh Amendment, to which point I add humbly that anti-vigilantism is an important function of our civil dispute resolution system, and maybe we ought remember that in a society in which the least mentally stable among us apparently have ready access to firearms.

So it's the confluence of these two socio-legal problems that interests me in the present case, more than the merits. On the merits, the Grubhub complainants tried to work around their 2017 clickwrap agreement to arbitrate by characterizing themselves as a kind of interstate transportation worker that is exempt from the Federal Arbitration Act. But Grubhub drivers are not long-haul truckers. A for creativity, F for achievement. The court held that the drivers indeed signed away their right to sue.

F is likely to be the final disposition of the complaints in arbitration after remand, too.

You can read more in Archer v. Grubhub, Inc., No. SJC-13228 (July 27, 2022). Justice Dalila Argaez Wendlandt wrote the unanimous opinion (temporarily posted).  The case in Suffolk County Superior Court is no. 1984CV03277 (class action complaint filed Oct. 21, 2019).

The U.S. Chamber, dependable opponent of transparency and accountability, was among the amici on the prevailing side.  The Harvard Cyberlaw Clinic was among the amici for the workers. The office of Commonwealth Attorney General Maura Healey entered an appearance as amicus, but filed no brief. Healey's office sued Grubhub one year ago, alleging the company overcharged Massachusetts restaurants during the pandemic (complaint, press release). That case, no. 2184CV01719 in Suffolk County Superior Court, is pending currently on cross motions for summary judgment.

As America, France share Enlightenment roots, why have worker rights so diverged? Or have they?

Thomas D. Aaron Wazlavek, Esq. has published an article in comparative labor law: The Pond Separates Cultures but Not Values: A Comparative Look at the French Codification of Right to Withdrawal of Labor and the American Concept of At-Will Employment.  The article appears in the Florida Journal of International Law at the University of Florida Levin College of Law.  Here is the abstract:

The differences and similarities between the United States common law concept of “right to work” and the modern development in France of the right to withdraw labor following the “Yellow Vest” movement in 2018 demonstrate a parallel diminution of workers’ rights. These changes are motivated by the same values inherent within capitalism that are superimposed through the law. This Article analyzes the social and legal contexts in both countries that demonstrate that the superimposition of these values through law is a continuing modern western trend. The key difference is that while the French model is designed to decrease the pressure for strike actions by workers, it also serves as a protection to workers as compared with the American model which exists as a tool to remove workplace protections by substantially altering the terms and conditions of employment. Further, this Article demonstrates that these concepts are both divergent and convergent in terms of core shared values and the peripheral aspect of laws setting cultural norms. This Article then concludes through comparative analysis that while the French right to withdraw labor is a product of legislative supremacy, and the American view within the common law is that at-will employment is the standard, the French model is a product of generations of social negotiations. The American model is a product of the easily swayed influences within the common law that allow a new legal theory with little to no precedential value at the time of its proposal to be adopted in sweeping fashion with very little civil discourse.

An attorney living and working in Rhode Island, Wazlavek (blog, LinkedIn, Twitter) presently serves as a contract coordinator for Teamsters Local 251.  It's not uncommon to see him on a Rhode Island street corner alongside sign-wielding workers.  He had already a wealth of experience in the labor movement before he went to law school.  He taught me a great deal about organized labor—its value when it works the way it's supposed to—and I was able to contribute torts and comparatism to his impressive repertoire.

The Pond started as a paper in Comparative Law, co-taught by an embedded librarian, the esteemed Dean Peltz-Steele, and me and tracks one of many remarkable parallels in the cultural evolution of the United States and the French Republic.  Just yesterday I read Rachel Donadio's fascinating treatment of secularism, or laïcité, in The Atlantic.  Observing the shared roots of the French principle with American anti-establishment doctrine, Donadio observed:

The histories of few countries are as deeply intertwined as those of France and the United States. Both nations are products of the Enlightenment, and each sees itself as a beacon among nations. Both embody a clear separation of Church and state. In the United States, the separation is defined by the establishment clause of the First Amendment, which prohibits the government from making any law "respecting an establishment of religion" or obstructing the free exercise of religion. The First Amendment was inspired by the earlier Virginia Statute of Religious Freedom, adopted in 1786, the work of Thomas Jefferson. Jefferson was ambassador to France when the French Revolution began, and the Marquis de Lafayette consulted him when drafting the revolutionary Declaration of the Rights of Man and Citizen, passed in 1789. Article 10 of that document states, "No one may be disquieted for his opinions, even religious ones, provided that their manifestation does not trouble the public order."

A shared legacy on labor regulation might not be traced so easily to the 18th century, but I would contend that American and French thinking about work and life is plenty in common.  Wazlavek maps that common cultural territory, and the article examines the social and economic forces that have prompted divergence, largely to the hazard of the American worker, and yet some recent convergence that prompted the Yellow Vest movement.

The article is Thomas D. Aaron Wazlavek, The Pond Separates Cultures But Not Values: A Comparative Look at the French Codification of Right to Withdrawal of Labor and the American Concept of At-Will Employment, 33 Fla. J. Int'l L. 75 (2021).

[UPDATE, Feb. 3, 2022:] Only two days after posting this item, I happened upon this compelling article as well: Stéphanie Hennette-Vauchez, Religious Neutrality, Laïcité and Colorblindness: A Comparative Analysis, 42 Cardozo L. Rev. 539 (2021).

Employer may not fire for personnel rebuttal, high court holds, even though statute provides no remedy

Pixy.org CC BY-NC-ND 4.0

Reversing a problematic and divided intermediate appellate court decision, the Massachusetts Supreme Judicial Court held in December that an at-will, private-sector employee may not be terminated for exercising a statutory right to rebut negative information in the employee's personnel file.

I wrote here at The Savory Tort about the intermediate appellate court decision in January 2021:

Plaintiff Terence Meehan, an employee discharged by defendant Medical Information Technology, Inc. (Meditech), availed of a Massachusetts statute that generously empowers an employee to rebut in writing negative information placed into the employee's personnel file.  The purpose behind the statute is to build a record so that a public authority, such as the state anti-discrimination commission, can better investigate any later legal claim of improper adverse action.  But the procedural mechanism of the statute, merely allowing the employee to rebut the record, does not itself articulate a basis in public policy to resist termination, the court held.

The Appeals Court had struggled with the case, deciding it 3-2 on rehearing after an initial 2-1 ruling against Meehan.  I commented then: The outcome was not inconsistent with American courts' general inhospitality to public policy-based claims of wrongful termination.  At the same time, the outcome was discordant with Massachusetts's more liberal disposition on wrongful termination, especially considering the civil rights-protective vein of the rebuttal statute.

The Supreme Judicial Court (SJC) recognized that public-policy constraints on at-will employment termination must be narrowly construed.  But constraint 

has been recognized "for asserting a legally guaranteed right (e.g., filing a worker's compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury)" [SJC's added emphasis].... In addition to these three categories, this court subsequently created a fourth category to protect those "performing important public deeds, even though the law does not absolutely require the performance of such a deed." .... Such deeds include, for example, cooperating with an ongoing criminal investigation.

The rebuttal statute fell in the first category, the SJC held.  The trial court and Appeals Court had improperly second-guessed the importance of the statutory right and discounted it for its relation primarily to internal private affairs.  Those considerations bear on the fourth category, the court explained.  The legislative pronouncement is conclusive in the first category.

Even so, the court opined, the right of rebuttal is important, because it facilitates compliance with other workplace laws, "such as workplace safety, the timely payment of wages, and the prevention of discrimination, and nonemployment-related activity, such as those governing the environment and the economy."

While the lower courts were put off by the legislature's seemingly exclusive express remedy of a fine for non-compliance, the SJC regarded the omission of a retaliation remedy as mere failure to anticipate.  "Indeed," the court opined, retaliatory termination "would appear to be sticking a finger in the eye of the Legislature.... We conclude that the Legislature would not have permitted such a flouting of its authority, had it contemplated the possibility."

An employee claiming wrongful termination still has a hard road to recovery.  The court emphasized that causation, connecting rebuttal and termination, may raise a question of fact in such cases, and here on remand.  Moreover, an employee can overstep and forfeit common law protection.  The statute "does not extend to threats of personal violence, abuse, or similarly egregious responses if they are included in the rebuttal."

The case is Meehan v. Medical Information Technology, Inc., No. SJC-13117 (Mass. Dec. 17, 2021).  Justice Scott Kafker wrote the opinion of the unanimous court.

Police officer delivering lunch was off the job for immunity, injured fellow on the job for worker comp

Pixabay by Ronald Plett (license)

A personal injury claim against a police officer's automobile insurer highlights the different scope of what it means to be "on the job" for purposes of statutory immunity and worker compensation.

In a case the Massachusetts Supreme Judicial Court (SJC) decided in late October, Raynham, Mass., police officers on mandatory firearms training on public property in 2017 organized takeout for lunch for a paid break.  Returning to the training site in his personal truck with the takeout, one officer drove the gravel path "faster than [he] should have," braked, and slid into and injured another officer seated at a picnic table.

The plaintiff-officer was permitted to claim state worker compensation, because he was injured on the job.  The defendant-driver's insurer meanwhile claimed immunity under the Massachusetts Tort Claims Act, because the insured acted "within the scope of his ... employment."  The SJC denied the insurer of the defense.

The common law test for "vicarious liability, respondeat superior, and agency," the court explained, is "whether the act was in furtherance of the employer's work," and the same test informs the invocation of statutory immunity.  That analysis comprises three factors in Massachusetts law: "(1) 'whether the conduct in question is of the kind the employee is hired to perform'; (2) 'whether it occurs within authorized time and space limits'; and (3) 'whether it is motivated, at least in part, by a purpose to serve the employer.'"

Only the middle factor favored the insurer, the court opined, so the analysis on balance disfavored immunity.

Worker compensation and common law master-servant doctrine are indistinguishable as a practical matter in many cases, when an employee suffers injury doing the employer's bidding.  Doctrines in both veins rely on "scope" or "course of employment" tests.

But even when the language is the same, the tests differ, and in some cases, the difference matters.  Worker compensation tests only loosely for a causal connection between employment and injury, thus famously allowing a traveling salesman to recover when his overnight motel was destroyed by a tornado.  Vicarious liability, and thus, Massachusetts immunity, requires a closer causal nexus between the employee's specific pursuit and the injury that results.

In this analysis, the defendant-driver's lunchtime carelessness, for which he was suspended for five days, was not in furtherance of the employer's work, so qualified for neither vicarious liability nor statutory immunity. The officer injured was on a paid break, so was covered by worker compensation. The worker compensation system may recover in subrogation from the driver's private insurance.

If the driver himself had been injured, it's arguable whether he would have been covered by worker compensation, despite his "gross negligence," as the court described his driving. Under the worker compensation test, he was returning with lunch to the job site during a paid break. The causation requirement for worker comp is looser than the respondeat superior/sovereign immunity test. The anomalous result that might then pertain is that the driving officer would be liable in subrogation for a fellow-servant injury even though he was on the job for the purpose of worker compensation.

The case is Berry v. Commerce Insurance Co., No. SJC-13089 (Mass. Oct. 25, 2021).  Justice Dalila Wendlandt wrote the unanimous court opinion.

This posting was revised Apr. 1, 2024, with addition of the penultimate paragraph and revision to the preceding paragraph and headline. The original post improperly conflated the worker compensation analyses that would pertain to the injured officer and the vehicle driver.

So now you care about academic mobbing

Angry Mob by Robert Couse-Baker, CC BY 2.0

Princeton politics professor Keith E. Whittington (on the blog) has a wisely worded op-ed, on The Volokh Conspiracy at Reason, on the too often abdicated responsibility of university administrators to push back against viewpoint-based campus mobbing of faculty.

"It is now a familiar pattern," he writes: attack, petition, social media campaign, demand for termination.  Of the university's duty, he writes:

University presidents have a responsibility in such a situation. It should go without saying, but unfortunately it does not, that they have a responsibility to actually live up to their constitutional and contractual responsibilities and refrain from sanctioning the faculty member for saying something that someone finds controversial. They should insist that harassment and threats directed against members of the faculty will not be tolerated. Professors should at least be confident that when the mobs arrive, pitchforks in hand, that university leaders will not flinch and give in to the demands of the mob.

I hope the piece hits the desk of every university president in the land with a thunderclap of j'accuse.

Yet it is fascinating to me to see described today as cliché what was once fringe.  Canadian sociologist Kenneth Westhues, professor emeritus at the University of Waterloo, published his Workplace Mobbing in Academe (2004) seventeen years ago, and that book was built on his earlier Eliminating Professors (1998).

By the time I met Ken in 2009, he was already the world's leading expert on academic mobbing.  He still is.  Westhues's website is still the online clearinghouse on mobbing as a sociological phenomenon. But he's almost never cited, at least in the legal lit.  I find eight references to Westhues on Westlaw's JLR database, and none in the last dozen years.

At a program at the Association of American Law Schools (AALS) in 2010, I accepted the invitation of Westhues and Syracuse University law professor Robert Ashford to speak of my experience.  Ashford perceived a worthwhile connection to his inventive work in socio-economics, and Westhues flattered me with my name as a participle. 

The splash we made at AALS and in legal academics eleven years ago might be described well as mostly indifferent curiosity.  Mostly modifies indifferent, not curiosity.  

I wrote in the Journal of College and University Law in 2009 about the need for broader academic freedom, beyond published research and into the professorial "penumbra."  I presented at AAUP, besides AALS.  The article was cited once in a 2011 bibliography and once in 2013.  (Thanks, Profs. Benson and Jones.)  And that was that.

Not until cancel culture reached the well known coastal scholars of academia's elite institutions did mobbing hit the mainstream.  Now a lot of important people are wringing their hands over academic freedom and waning tenure.

Too bad they don't seem able to find my article.  Or Westhues's work.  Is there really a wheel until it's invented at a "top" school?

It's nice to see serious people having serious thoughts about academic freedom, at last.  But it's too late to give solace to a generation of victim-scholars.  And it's probably too late to resuscitate intellectual liberty on campus, for at least a generation yet.

Netflix's 'The Chair' satirizes academic politics with troubling truths of contemporary campus culture

Netflix's The Chair is an enjoyable six-episode sit com on the absurdity of academic politics in American higher education today.  The show was created and written by Amanda Peet and stars Sandra Oh (Grey's Anatomy, Killing Eve) as the perpetually embattled chair of the English department at a small elite college.

In one storyline, reminiscent of Scott Johnston's Campusland (2019), well meaning professor Bill Dobson (Jay Duplass) is pilloried for a mock Nazi salute, turned into a social media meme, in a class lesson on fascism and absurdism.

Comedic parody derives its beauty, of course, from its grain of truth.  Dobson's predicament is precisely one reason I have resisted routine video lecture capture.  Humor has pedagogical value, but one remark out of context is a brewing tempest in a teapot.  The risk might be worthwhile if teachers could have confidence in academic freedom.  But they can't and don't.

As depicted in the show, university administrators obsessed with appearances and virtue signaling to the near exclusion of educational mission and pedagogical merit relish any opportunity to sacrifice an iconoclastic academic to the maw of groupthink.  No shackles of investigation or professional integrity can be permitted to slow the rush to condemnation.

Jay Duplass (Peabody Awards photo CC BY 2.0) 

Fictional Professor Dobson defends himself to the dean: "I’m tenured.  You can’t constrain my actions in my own classroom or my speech on this campus unless I’m in violation of the faculty code of conduct.  Which I’m not."

But there's the rub: arguably, he is.  An administrator at my university has enforced against faculty the university system's "Principles of Employee Conduct." The vague principles require faculty to "accord respect" to all persons and "to accept full responsibility for their actions."

If those terms were read in accordance with others—"foster forthright expression of opinion and tolerance for the views of others"—then no problem.  But if administrators are willing to read dissent, whistle-blowing, and classroom provocation as disrespect, which they are, faculty have no real recourse.  As I wrote more than a decade ago, and others periodically observe, tenure protection grounded in procedural due process is an empty promise in practice, and courts routinely abstain from recognition of any substantive academic freedom.

Faced with dismissal proceedings, Dobson reluctantly resorts to a lawyer in the final episode of the first season.  No spoilers.

The Chair is enjoyable mostly for the comedy.  But it delivers as well periodic gems of thought-provoking truth, besides the sad state of academic freedom: the need for critical reexamination of historical subject matter and diversification of faculty perspectives, without sacrificing academic integrity; the fate of classical studies in the age of impatience; university budget cuts to unremunerative liberal arts; the personal and professional challenges of growing old amid fast-paced social evolution; and what can or should be done today to remedy past social and economic injustices of race and gender.

When the father of our protagonist Ji-Yoon Kim criticizes her work-life imbalance, an aggravated Kim retorts, "What promotion means you don't have to work as much?!"

A story for our times.

Also among the outstanding cast are Nana Mensah (Queen of Glory, King of Staten Island) and the ageless Holland Taylor.  Sophie Gilbert at The Atlantic liked it too.  HT @ Prof. Irene Scharf.

How many people suffer while state unemployment office shuffles paper, issues baseless denials?

I wrote in 2020 about the pay cuts foisted on faculty and staff at UMass Dartmouth.  We're a union shop, which is weird for university faculty in the United States, but at least is supposed to be good for workers.  So for my pay cut—about 11.6%, plus $4k in professional development budget, over one calendar year, so far—the union got me, in return—wait, let me punch the numbers into the calculator—

Nothing.

I quit my union membership once and for all, before the ink dried on the union's Memorandum of Abdication.  But thanks to the compulsory representation law in Massachusetts, I'm still bound to give away anything the union, with its refined talents at the bargaining table, decides that I should give away.

Let me interject a disclaimer that I am not complaining about having a job during the pandemic.  As will become clear momentarily, I am writing about this for the very reason that my concern extends to the many persons who are not as fortunate.  I push myself every day, literally every day, to count my blessings and be grateful, and to find a way to show compassion for those facing hardships during this crisis.  Some days I do better than other days.

With regard to my personal situation, I suggest, I hope modestly, only that in exchange for a pay cut, there might have been some benefit afforded in return: maybe a leniency in job requirements, such as research or teaching load; maybe flexibility in course scheduling; maybe an "IOU" for development budget down the road.  I might could have been bought off for the price of some reference books from my wish list.  Or a new hoodie.  I can always use a hoodie.

I suggested these bargaining chips (except the hoodie) to the union.  No response.  I understand.  It takes a lot of energy and focus to give so much away in so short a time.

But this isn't about the union.  Not today.  Today I write about another bloated bureaucracy feeding ironically at taxpayer teats: the Massachusetts Department of Unemployment Assistance, or "Mass UI."

I was given the option, which I accepted, to take part of my pay cut as furlough during the holidays in December.  There was absolutely no reduction to my workload in December, so one might question the utility of a furlough.  But the idea was, the university told us if carefully to disclaim any guarantee, we could claim unemployment insurance to recover a fraction of four days' pay.  It happens that my wife, who also works for the university as an administrator, also took a pay cut (two, actually, for staff) and furlough (also two).  I'm trying to leave her out of this, and I definitely do not speak for her, so I will tell only what I have to to get my story across.

Let me interject again: As a taxpayer, I am not a fan of one financially stressed public institution shoving its accounts payable off on another financially stressed public institution.  That doesn't seem to me to be an efficient way to solve the problem of stress on the fisc.  But I don't make the rules.  We've got a kid in college.  I'm not leaving money on the table.

So we both filed, at different times in 2020, for whatever unemployment insurance we might recoup.

My wife's online account access was immediately shut down, purportedly in response to a spate of fraudulent claims received by Mass UI.  While her access was blocked, Mass UI (claims that it) sent an electronic request for documents to confirm her identity.  She didn't know about any request, because access was blocked.  She couldn't file the docs, even if she'd known to, because access was blocked.  Meanwhile, Mass UI confirmed the validity of her claim with university HR.  

And then Mass UI denied her claim anyway for supposed failure to provide ID.  She didn't even find out about the denial until months later, because, say it with me, access was blocked.

Having witnessed that mess of an experience, I set my account for hard-copy correspondence only, by mail.  Mass UI sent to me, in hard copy, a request for documents to confirm my identity.  Promptly, I returned, in hard copy, the documents requested.  Presumably, Mass UI could confirm my identity, too, and the legitimacy of my claim, with the university.  I work for the state, after all.  But I was trying to play nice.

Twenty days later, Mass UI denied my claim anyway for supposed failure to provide ID.

We both now have appeals pending.  I expect we will have to go to Boston for hearings (50 miles and two hours each way, expensive parking, different days).  As yet, the hearings have not been scheduled.  My wife's first claim dates back to the summer, in the heyday of federal subsidies.  Good times.

As I just wrote to the Commonwealth Attorney General, at some point, misfeasance slides into malfeasance.  I don't know what's going on at Mass UI.  But it's inexcusable.

And that brings me back around to people who are really hurt by this kind of misfeasance or malfeasance by public officials.  People already are suffering for so many reasons: pandemic risk, joblessness, homelessness, systemic disadvantages of race and socioeconomics.  If my family's experience with Mass UI has resulted in two out of two legitimate, easily confirmed claims being rejected on nakedly indefensible, if not outrightly false, grounds, then how many claims are being wrongfully denied for claimants who are depending on unemployment assistance in a time of crisis?

Look, we're lucky.  I know it.  We're both lawyers.  We have the know-how to appeal, and to sue if necessary.  We have the flexibility in our work to adjust our schedules for hearings, and a car to go to Boston if we have to.  We make decent money, even after pay cuts, educational loan debt, and college tuition bills.  We'll be OK.

But today is one of those days that I feel like I'm falling short on compassionate action.  I should do something.  Something should be done.  

I don't know what.  Or how.

I do suspect that Mass UI is running the vaccine roll-out.

This blog is mine and mine alone, and not a product of my employer.  I speak as a private citizen, not a representative of the university, even if my writing sometimes also serves public interests, which is part of my job.  I reference my job and work profile on this blog for purpose of identification only.  While this disclaimer always pertains, I wish to emphasize it today.

UPDATE, Feb. 16, 2021: Our IDs were accepted and matters remanded from appeal to reprocessing thanks to heroic intervention, for which we are grateful, by an individual in the UMass Dartmouth HR office.  Of course, that doesn't alleviate our concerns about people in Massachusetts who are in serious need. WGBH reported on February 8 on "shocking[] dysfunction[]" in the system, having exactly the impact we feared.

Divided court allows employee firing for exercising statutory right to supplement personnel record

Pixy.org CC BY-NC-ND 4.0

An at-will employee may be fired for rebutting an adverse employment action, the Massachusetts Appeals Court held today, despite a state law that specifically empowers employees to add rebuttals to their personnel records.  The decision drew a vigorous dissent from two of the five justices on the rehearing panel.

As my 1L students tire of hearing, we read cases in law school (in the common law tradition) for one of a number of purposes.  For any given lesson, it's important to know which our purpose is, especially when it is to demonstrate the rule by counterexample.  To teach wrongful termination, I have used a federal case, applying Massachusetts law, in which the court is much more generous to the at-will claimant than a state high court typically is.  But today's case proved only the norm.

The instant plaintiff found no relief from the usual rule that, as the Appeals Court quoted precedent, "employment at will can be terminated for any reason or for no reason."  Massachusetts admits of narrow exception to the rule for "well-defined public policy," "preferably embodied in a textual law source."  Think firing a model for taking maternity leave, a claim that resonates with dimensions of both statutory entitlement and civil rights.  Yet even while the plaintiff here pointed to a specific statutory entitlement, the Appeals Court rejected his claim.

Plaintiff Terence Meehan, an employee discharged by defendant Medical Information Technology, Inc. (Meditech), availed of a Massachusetts statute that generously empowers an employee to rebut in writing negative information placed into the employee's personnel file.  The purpose behind the statute is to build a record so that a public authority, such as the state anti-discrimination commission, can better investigate any later legal claim of improper adverse action.  But the procedural mechanism of the statute, merely allowing the employee to rebut the record, does not itself articulate a basis in public policy to resist termination, the court held.

Meehan's rebuttal was not in the appellate record, the court wrote in a footnote.  From its absence, one might infer that it was not predicated on what the court would regard as worthy public policy.  An employer's "internal administration, policy, functioning, and other matters of an organization cannot be the basis for a public policy exception," the Supreme Judicial Court held previously.  "If it were otherwise, our courts would become super personnel departments," the Appeals Court reasoned.

Justice Meade
Mass.gov

It would be hard to conclude that the court's ruling is other than consistent with common law norms.  Many a state court has never seen a wrongful termination claim it liked, at least in the context of at-will employment.  And the notion of utterly "at will" conforms to the American norm of freedom to contract.

At the same time, the ruling seems to undermine the statute.  As a practical matter, an employer asserts many reasons for an adverse personnel action, and an employee's rebuttal answers in kind.  The rebuttal itself is then a viable predicate for termination—"not a team player"—even when the employee alleges, inter alia, an actionable wrong, such as discrimination.  The employee may then complain of discrimination vis-à-vis the precipitating adverse action.  But the employee had that option anyway.  There is nothing to be gained, and everything to be lost, by using the rebuttal statute as a resolution procedure.

Justice Henry
Mass.gov

That was the thrust of the dissent.  "Only the credulous and fools would exercise this right henceforth," Justice Henry wrote of the rebuttal statute.

Meditech admitted that it terminated Meehan solely for writing the rebuttal, something he had a statutory right to do.  Dispute resolution is among the purposes of the statute, Justice Henry reasoned, possibly sparing the Commonwealth an unemployment insurance claim.  At minimum, the personnel record, which might be reviewed by a prospective second employer, is complete with both sides of the story.  Meditech has no apparent, legitimate interest, Justice Henry observed, merely in disallowing rebuttal under the statute.

The dissent concluded:

The result the majority reaches renders the statutory right useless and illusory, and empowers employers to punish employees for doing exactly what the Legislature authorized them to do. Countenancing such a result is wholly inconsistent with a just—or even a sane—employment policy. The majority essentially casts the Legislature as a trickster, creating a trap for unwitting employees that employers now may spring.

The case is Meehan v. Medical Information Technology, Inc., No. 19-P-1412 (Jan. 20, 2021).  Justice William J. Meade wrote the majority opinion, which Chief Justice Green and Justice Vuono joined.  Justice Meade was an appellate attorney in the attorney general's office in the 1990s and deputy chief legal counsel to Governor Mitt Romney in the 20-aughts before going on the bench, and he teaches appellate practice at Suffolk Law School.  

Justice Vickie L. Henry wrote the dissent, which Justice Rubin joined.  Justice Henry was a commercial litigator in intellectual property, product liability, and other matters for more than a decade, and then a senior staff attorney for Gay & Lesbian Advocates & Defenders before her appointment to the bench.  The case was reheard after the initial panel divided 2-1.  The addition of two judges apparently only added a vote for each corner.