Court: Employer has no free speech right to republish worker healthcare data that state provides conditionally

Confidential (Nick Youngson Alpha Stock Images CC BY-SA 3.0)

An employer has no First Amendment right to republish the identity of workers who relied on publicly subsidized healthcare when the state provides the names conditionally, for restricted use, the Massachusetts Appeals Court held yesterday.

A state program imposed assessments on employers whose employees relied on publicly subsidized healthcare.  The state offered to tell the employer which employees triggered assessment, so that the employer could review, and if appropriate challenge, the assessment. But the names came with strings attached: employers were required to promise that they will use the names in the administrative process only and not republish them.

Emerald Home Care, Inc., challenged the assessment program and conditional disclosures as violative of procedural due process and the First Amendment.

Affirming the Superior Court, the Appeals Court rejected both arguments.  As to due process, the state provided employers ample notice and opportunity to be heard in resisting the assessments.  As to the First Amendment, the state may attach conditions to access to confidential information.

In the First Amendment analysis, the court cited two U.S. Supreme Court oldies but goodies: LAPD v. United Reporting (1999) and Seattle Times v. Rhinehart (1984).  In LAPD, the Court allowed a statute to condition access to criminal histories on non-commercial use.  In Seattle Times, the Court allowed a protective order on discovery disclosures in a defamation-and-privacy case in which a newspaper was the defendant.

Justice Desmond

The Appeals Court applied intermediate scrutiny, drawn from Seattle Times.  The court reasoned that confidentiality in healthcare insurance information is an important state interest, and the restrictions on disclosure were closely tailored to the purpose of maintaining confidentiality while allowing the employer limited access for the purpose of administrative review.

The case is not remarkable for its holding, but it marks an ongoing tension between U.S. and foreign law over free speech, privacy, and data protection.  In the United States, the First Amendment often is a wrench in the works of government efforts to regulate information downstream from its disclosure to a third party.  Legal systems elsewhere in the world are more comfortable with the notion that a person's privacy rights may tag along with information in its downstream transfer from hand to hand, outweighing the free speech right to republish.

I noted some years ago that in some areas of U.S. law, including freedom of information (FOI), or access to information, we can see examples of American privacy expectations that accord with, not diverge from, European norms.  Downstream control by contract has been a key advancement in making some jurisdictions willing to furnish court records to information brokers.  Binding a broker to adjust records later as a condition of receipt helps to solve problems such as expungement, the American judiciary's equivalent to the right to be forgotten.

The case is Emerald Home Care, Inc. v. Department of Unemployment Assistance, No. AC 20-P-188 (Mass. App. Ct. Feb. 2, 2021).  Justice Kenneth V. Desmond Jr. authored the opinion for a unanimous panel that also comprised Chief Justice Green and Justice Lemire.

Collateral to drug-testing race discrimination suit, Boston wins chance to demand indemnity by lab

National Archives

Is hair-follicle drug testing racially discriminatory?

That was not the question before the Massachusetts Supreme Judicial Court Friday, but the Court's decision ancillary to that disparate-impact civil rights question is instructive on indemnity.

The civil rights claim in this case was filed in 2005 and still is in litigation in federal court.  Plaintiffs in that suit are eight police officers, a police cadet, and an applicant for a 911-operator job who suffered adverse action after testing positive in hair-follicle drug tests administered by the City of Boston.  Seven of the officers were fired for cocaine-positive results.

The plaintiffs, all African American, deny drug use.  They assert that the test is inaccurate and "disproportionately yielded false positives for people of color, resulting in disparate impact by race," the SJC wrote Friday.  "During the eight years for which the plaintiffs present data, black officers and cadets tested positive for cocaine approximately 1.3% of the time, while white officers and cadets tested positive just under 0.3% of the time," the First Circuit wrote in 2014.

The city won summary judgment twice in the trial court, yet the First Circuit twice found error, in 2014 and in 2016, and remanded for further proceedings.  The case, Jones v. City of Boston, remains in the district court, though the docket shows no activity on the merits since the latter remand, suggesting a resolution might have been reached.

The instant case is a dispute in state court between the city and the test provider, Psychemedics Corp.  In the city's contract with Psychemedics, the company promised "to 'assume the defense of' the city, and to 'hold [it] harmless' from all suits and claims arising from 'wrongful or negligent' acts by Psychemedics."  After suit was filed against the city, it went to Psychemedics to talk defense.  It's not clear that the two ever got on the same page.  Psychemedics seemed to regard the suit as outside the scope of the indemnity and regarded its obligations fulfilled by offering the city technical assistance on the science.

Then, as the SJC recounted flatly, "Ten years passed."  In 2017, the city started looking around for help with its long mounting legal expenses and set its sights on Psychemedics.  "What?!" Psychemedics said.  I paraphrase.  Psychemedics sued for declaratory relief, and the city counterclaimed for breach of contract and related theories.

The case boils down to an indemnitee's duty to notify an indemnitor of the need to defend.  An indemnitee, the Court held, "must give the indemnitor 'notice and an opportunity to defend.'  The indemnitee then must allow the indemnitor to take over the defense (if it attempts to do so), and must not later block the indemnitor from doing so."  Parties are free to contract specifics, but in the absence of other specification, "'no particular form of words is necessary' to present notice and the opportunity to assume the defense."  (Citations omitted throughout.)

Justice Lenk

The SJC vacated the trial court summary judgment for Psychemedics and remanded.  The trial judge had improperly decided questions of fact, inadvertently burdening the city with having to refute the company's assertions of fact.  The SJC rejected as unproved, as yet, a number of Psychemedics theories, such as that the city had declined the company's defense or had not litigated Jones in good faith as to protect Psychemedics from liability.

To my novice reading—I am no expert on insurance or indemnity—the city fairly invoked the company's duty to defend many times, and Psychemedics tried to weasel out.  Anyway, the SJC concluded that that was how the trial court should have looked at the case on summary judgment motion, because that was the position of the city, which was the non-moving party.

The case is Psychemedics Corp. v. City of Boston, No. SJC-12903 (Mass. Jan. 29, 2021).  Justice Barbara A. Lenk, since retired, authored the opinion of the unanimous Court.

See America in black and white

13th Amendment

With the imprimatur of federal law, today is National Freedom Day, celebrating the day that President Abraham Lincoln signed the joint congressional resolution proposing the 13th Amendment in 1865.  Congress passed the proposal the preceding day, and it was ratified on December 6, 1865.  Today also is the first day of African-American History Month.

With my comparative law class recently, I had the occasion to visit a classic treatment of race in Star Trek's original series.  We were studying "the perspective problem" in comparative research, which refers to the way a legal system (any social system) can look one way when studied by someone within it, and a different way when studied by an outside observer.

There's a scene in the 1969 episode "Let That Be Your Last Battlefield" (s3e15) that's been talked about for half a century even by social commentators outside science fiction and entertainment communities.  The theme of the episode is almost cliché insofar as it typifies the tendency of Star Trek creator Gene Roddenberry and 1960s showrunner Gene L. Coon to employ heavy-handed metaphor to effect social comment.  Still, the story is effective.

Gorshin with Lou Rawls in 1977
(Orange County Archives CC BY 2.0)

What cliché might have diminished was restored and then some by ferocious performances in Frank Gorshin (Bele) and Lou Antonio (Lokai).  Gorshin, who continued acting right up until his death in 2005, was already a well known villain to TV audiences in the 1960s, as Adam West Batman's Riddler.  Antonio had recently played chain-gang prisoner Koko in Cool Hand Luke (1967).  He followed up Star Trek with a four-decades-long career in TV directing that ranged from The Partridge Family and Rockford Files to legal classics Picket Fences, Boston Legal, and The Guardian, not to mention one West Wing.

The first scene below sets the stage; you only need about the first two minutes.  I'm sorry that CBS has labeled it inappropriate for children, so you have to open a new window to watch it.  I rather disagree; I recommend the clip especially for children, especially now, part of an essential diet of dialog about race and America.

The second scene below delivers the pièce de résistance.  I won't spoil it, in case it's new to you.

For social context, this Star Trek episode aired in January 1969.  Martin Luther King Jr. had been assassinated only nine months earlier.  While this episode aired, student protestors were occupying buildings at Brandeis University; they renamed them "Malcolm X University" and demanded the creation of an African-American studies department.  Stonewall, the moon landing, and Woodstock followed in the celebrated summer of '69.

Happy National Freedom Day.

New England poli sci group announces virtual meeting, extends CFP deadline for faculty, grad students

NEPSA art

The New England Political Science Association (NEPSA) has decided that its spring 2021 annual conference will be all virtual.

The call for proposals (CFP) deadline has been extended to February 19, 2021. NEPSA will convene on April 23 and 24, 2021.  The CFP is open to faculty and graduate students.  I have tremendously enjoyed this conference in past years and found it to be a collegial, inclusive, and supportive environment for scholars both junior and senior, and both political science and interdisciplinary, including law students. 

NEPSA subject-matter sections are: American Politics, Comparative and Canadian Politics, International Relations, Political Theory, Politics and History, Public Law, Public Policy, and Technology and Politics.

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.

Landlord owes no duty to cyclist attacked by tenant's dog, court rules, citing breed discrimination ban

A "dog law" decision in the Massachusetts Appeals Court today recognized the state's ban on breed-specific legislation and refused to recognize a landlord duty to protect a passing bicyclist from a tenant's pit bull.

Pixy.org CC0

In affirming the defendant's motion for summary judgment, the court recited the plaintiff's facts.  Plaintiff-bicyclist Creatini had his dog on a leash as he passed the unfenced yard of tenant Mills, owned by defendant-landlord McHugh.  Mills's pit bull terrier left the yard, gave chase, and attacked the plaintiff's dog.  The plaintiff fell from his bike and was injured—in the fall, not directly by the pit, though no word on how the plaintiff's dog fared.  McHugh knew that Mills kept the pit bull and had told him to get rid of the dog.

The court rejected plaintiff's effort to charge the landlord with a landowner duty of care in negligence.  Massachusetts approaches landowner liability through the "reasonableness under all the circumstances" approach, rather than the formalist common law framework of invitees and licensees.  Under either approach, landowner liability exposure can project beyond the property line along with a "condition of property," such as a dog.  But here, McHugh's knowledge was limited to the presence of a dog, not a foreseeable danger.  "Nothing in the summary judgment record indicate[d] that McHugh was aware that Mills's dog was aggressive or prone to attack passers-by," the court wrote.

The short case decision is instructive on duty in tort law, generally, and on animal law, in particular.  As to duty, the court briefly recited the conventional approach.  While it may be said that all persons owe a duty to all others to avert harm through the exercise of reasonable care, it is simultaneously true in American tort law, in general, that persons do not owe a duty to strangers with whom they have no interaction.  A "special relationship" recognized in common law also can give rise to duty, as for an innkeeper to a guest, but no such theory pertained here.

Photo by Airman 1st Class Jeremy Wentworth, 97 AMW/PA

Landowner liability grounds duty in the particular relationship between the premises owner (or controller) and one who comes on (or here, very near) the land.  To test here whether landlord and stranger-passerby were connected by strong enough a thread to support duty, the court quoted precedent, which in turn quoted 20th-century tort scholars Prosser and Keeton, recognizing the weight of public policy and common sense in the analysis (quotation marks and ellipses omitted):

The concept of duty is not sacrosanct in itself, but is only an expression of the sum total of considerations of policy which lead the law to say that the plaintiff is entitled to protection.  No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.

The plaintiff pointed to precedent in which the Supreme Judicial Court (SJC) recognized a duty owed by a keeper of firearms to a policeman shot by a man who had access to the keeper's home, whom the keeper knew to be under psychiatric observation, and who stole one of the weapons.  Foreseeability in that case was stronger on the facts, and, critically, the SJC had relied on a common law duty, echoed in statute, to manage a dangerous instrumentality, the gun, with the utmost care.

In animal law, in contrast, Massachusetts statute charges a dog owner, but the dog's owner only, with strict liability for injury inflicted by the dog.  Moreover, the court declined the plaintiff's entreaty to treat pit bulls (not actually a breed) specially as a "dangerous instrumentality," like a gun, volatile chemicals, or explosives.  (The defendant disputed the dog's breed, a question of fact, the court recognized, but not one that needed to be resolved for summary judgment.)  The court cited a line in a 2008 SJC opinion stating that a pit bull is "commonly known to be aggressive."  But subsequently enacted legislation dictates a contrary policy inclination.  The court recognized in footnote:

[D]ogs cannot be regulated based on their breed. In 2012, Massachusetts amended G. L. c. 140, § 157, to provide in part: "No order shall be issued directing that a dog deemed dangerous shall be removed from the town or city in which the owner of the dog resides. No city or town shall regulate dogs in a manner that is specific to breed."

Patrick Stewart and Dinero the Dog

in Star Trek: Picard (2020) (© CBS 2019)

Indeed, the 2012 Massachusetts law against breed-specific regulation was a victory for animal protection advocates.  The SJC's 2008 observation was correct as a statement of public perception, and perhaps reality.  But insofar as aggressiveness is a pit trait, it is a function of human selection.  Breed-discriminatory legislation leads to excessive euthanasia of animals that are not dangerous.  (Not for the faint of heart, be warned, Wikimedia Commons has a moving graphic image of euthanized pits, and I could not stomach using it here.)  Read more at "Stop BSL."

Pit bull advocates include Patrick Stewart, Star Trek's Captain Picard.  He was recently coronavirus-vaccinated and is soon to start shooting Picard season 2, a show on which he wanted to be sure that his character's dog is a pit.  Advocates also include one of my sisters, who today brings a new (human) baby home to live with her pits, Mia and (the original) Baby, the sweetest dogs I've ever known.  And combating breed discrimination has been a cause of the Animal Law Committee of the Tort Trial Insurance Practice Section of the American Bar Association, with which I've volunteered in the past.

[UPDATE, Jan. 28:] See CBS Sunday Morning correspondent Martha Teichner with her bull terrier, Girlie, featured in The New York Times on January 22 (subscription).  [Jan. 31:] See her talk about her new book, a dog romance, on CBS Sunday Morning, embedded below

© ASPCA

Among many groups, the American Society for the Prevention of Cruelty to Animals (ASPCA) tracks anti-breed discrimination legislation and counted 21 state bans on breed-specific legislation (BSL) as of April 1, 2020.  "There is no evidence that breed-specific laws make communities safer for people or companion animals," the ASPCA writes, and the Centers for Disease Control and Prevention (CDC), having studied dog bites and human fatalities, also opposes BSL.  In my home state of Rhode Island, local breed-specific legislation seems to persist, despite abrogation by state law in 2013.

The case is Creatini v. McHugh, No. 19-P-1159 (Mass. App. Ct. Jan. 27, 2021).  Justice C. Jeffrey Kinder authored the opinion of a unanimous panel that also comprised Justices Massing and Grant.

One must admit, duty in dog law is a succulent subject.

'For the first time, we're seen as we should be seen,' Martin Luther King Jr. told Star Trek's 'Uhura'

Prepping the spring semester when classes start the day after an involuntary furlough is prone to put a particular professor perpetually a week behind.  So forgive me for belatedly marking Martin Luther King, Jr. Day, which fell this year on Monday, January 18. Or we can say this is a more timely commemoration of yesterday's World Day for African and Afrodescendant Culture.

Of all the things one could relate about the legendary Dr. King, Nichelle Nichols (IMDb, PBS), Star Trek's original Lt. Uhura, has the very best story.

That's from the 2011 documentary, Trek Nation (IMDb, Amazon).  She told the story also to the Television Academy Foundation in 2019.

'Horace and Pete' captures American moment

In our fast-paced platinum age of TV, a show foregone is too often vanished in the void, maybe a gem to be unearthed by a future socio-archaeologist, maybe a treasure committed to eternity.  Subsisting with this embarrassing extravagance, I watch as much TV as humanly possible.  Last week, I wrestled a prize from the gravity of evanescence.

The Harvey Weinstein allegations splashed across the internet in 2017.  "Me Too" got a hashtag, and so many of our screen stars were plucked from reverence that it wasn't easy to keep track of who was on the outs and whom we still could watch.  Relative qualitative assessment of sin was not a lawful plea.  Hollywood was blanched in black and white, and the implicated were expeditiously expatriated.  Here, certainly, I'm not meaning to diminish #MeToo, nor to opine on the merits of any accused, but only to observe the outcome.

Comedian Louis CK was out.  He already had been grist for the rumor mill, and then ugly accusations surfaced.  King Louis was deposed before the curtain closed on 2017.  He had not been a favorite of mine anyway, so, to be honest, I barely noticed.

Edie Falco in 2009

(Photo by David Shankbone CC BY 3.0)

So there were a lot of reasons why I, and a lot of people, missed Horace and Pete (short trailer below, from Hulu via YouTube).  CK created, wrote, directed, and starred in the series in 2016.  It was a 10-episode television drama, sort of.  Really it was an experimental web series.  It was experimental in how it was made, a budget crowd-sourcing operation that filmed, episode to episode, only as funding goals were reached.  CK sought both to pioneer a democratic model for making online TV and, with full transparency, to publish the model so that others could do it, too.  That business model didn't work out.  But A for aspiration.

The show also was experimental for what it was: a TV show, on a set, yes.  But through scene structure, stage direction, blocking, cuts (or lack thereof), and especially dialog, the show exudes the intimacy of a live stage play, and every viewer has the best seats.  Sometimes the actors make mistakes, let slip a sly smile, or trip over a line, but the camera carries on.  Longer episodes even have an "Intermission"—the word burns for a minute, white type on a black screen, suggesting that sets and costumes are changing behind the electronic curtain.  One is given the impression that crowd-sourcing doesn't swell the budget for endless takes and post-production wizardry.  The ultimate effect is to make the viewer feel like an insider in the conceit of the art.

And art it is.  CK stars as the eponymous Horace, owner of a rundown Brooklyn bar, Horace and Pete's, and its apartment above.  The bar survived the 20th century as the inheritance of generations of Horaces and Petes.  Now, a hundred years on, the bar, and the family, might have entered their coda.  The script bears ample evidence of CK's signature wit, droll style, and sardonic frown.  But the story is thoroughly a tragedy.  In the distinctively American tradition of Death of a Salesman, Horace and Pete is unrelenting with its occasions for despair, and yet, somehow, manages to illuminate the silver linings of family, loyalty, and love.

Alan Alda

(Photo by UT Moody College of Communication CC BY-SA 2.0)

CK the star might be the least compelling actor of the principal cast, and that seems to be exactly his plan.  The show is sumptuously star studded, and CK wrote for himself a central yet characteristically subdued role that serves to intensify others' shine.  As Horace's sister, Sylvia, Edie Falco does her most moving work since The Sopranos.  As present-generation Pete, the abundantly accomplished Steve Buscemi has done nothing else quite like this to date.

As the elder "Uncle Pete," the incomparable Alan Alda turns in a career-capstone performance, the omega to the broken-protagonist alpha of Goodbye, Farewell, and Amen, 33 years before.  Jessica Lange brings elegance to the dispirited surviving love interest of an elder Horace, and Aidy Bryant is incandescent as the aggravatingly unforgiving estranged daughter of CK's Horace.

The cast is rounded out with a stunning breadth of stand-up talents, often offering edgy and well-tuned comic relief, who take turns as bar flies.  The list is too long to give it its due, a who's who of contemporary American comedy.  So I'll mention only my favorites: Steven Wright and Kurt Metzger banter throughout the series.  Amy Sedaris, Michelle Wolf, and Colin Quinn get an episode each.  And there are cameos, too.  Mayor Bill de Blasio drops in the bar as himself, and magician David Blaine tries to trade a trick for a drink.

CK with a Peabody in 2013
(Photo by Anders Krusberg
/Peabody Awards CC BY 2.0)

Horace and Pete earned some critical acclaim before it dropped off the radar.  It won a Peabody Award in 2016 "[f]or a truly independent and groundbreaking demonstration of how quality television is expertly done in the new media environment, all the while building upon decades of artistry and craft."  And then there was 2017.

The show might be rising the recommendation ranks at Hulu now because CK spent 2020 at hard labor on the rehabilitation road.  Again, I'm not opining on the appropriate consequences for, or redemption eligibility of, a #MeToo offender.

The fact that I cannot escape is that too many people gave too much and worked too hard on Horace and Pete, and the sum of what they made is too valuable, to write it off.  Label it with whatever disclaimers one must, #MeToo and financial failure.  Amid our transition from broadcast frequencies to the electronic multiverse, Horace and Pete nevertheless represents a pivotal moment in cultural creation and a searing snapshot of the American condition.

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.