comp

On November 16, 2018, in Ileana Bermudez v. Dielectrics, Inc. the Massachusetts Appeals Court held that, just as an employer may not terminate an employee in retaliation for exercising the right to recover benefits under the Massachusetts Workers’ Compensation statute, neither can the employer terminate the employee for filing a tort claim against it for an injury which occurred prior to their employment.

In 2013, Ileana Bermudez was employed by Career Group Staffing Services, Inc., a temporary employment agency. She was placed in the Chicopee manufacturing facility of Dielectrics, Inc.  On July 26, 2013, she was injured when one of Dielectrics’ employees negligently operated a forklift, causing several large metal sheets to fall on her right foot and fracturing it.  As a result, Ms. Bermudez could not work for approximately eight weeks.  She filed a workers’ compensation claim naming Career Group as her employer and collected benefits from its insurer.  Under a 1971 amendment to section 15 of the Workers’ Compensation Act, her recovery of benefits from Career Group’s insurer did not preclude her from bringing a claim for negligence against Dielectrics.

She returned to work in September 2013, and three months later Dielectrics hired her as a full-time employee.  In July of 2015, however, Ms. Bermudez filed a tort action seeking recovery for the injury she had sustained in the earlier incident, asserting claims for negligence and respondent superior against the forklift operator and Dielectrics.  Dielectrics terminated her on September 22, 2015, citing the lawsuit as the reason for her termination. 

Ms. Bermudez brought an action against Dielectrics for retaliatory termination in violation of Mass. Gen. Laws c. 152, § 75B (2).  The lower court dismissed the action, reasoning that the provision did not apply because Dielectrics was not Ms. Bermudez’s “employer” at the time of her injury.  She appealed.

The limited question before the Court was whether filing a third-party negligence claim against the employer for a claim which arose prior to the commencement of the employment relationship is a right protected by the Workers’ Compensation statute.  The Court held that it is.  Because the 1971 amendment abolished the need for an employee to choose between filing a worker’s compensation claim against the employer and seeking recovery in tort from a third party, the Court reasoned that the right to file the third-party claim is protected by the statute.  Concluding that it would be unfair to preclude an employer from terminating an employee for filing one type of claim (a claim for workers’ compensation benefits) but not the other (a claim for recovery in tort), the Appeals Court vacated the dismissal of the action.

While the factual circumstances of the case are somewhat unusual, the decision underscores an important principle which should be kept in mind by any employer:  it is rarely, if ever, appropriate to terminate an employee for exercising their legal rights.  While an employee’s decision to take legal action against it may seem like “disloyalty” to the employer, Massachusetts courts are unlikely to share this view, and will not force an employee to choose between vindicating their legal rights and keeping their job.  If you have any questions about how this decision may affect you or your business, please do not hesitate to contact us.