Ex-Employee May Bring Retaliation Claim Against Former Employer for Actions Taken After Employment Relationship Has Ended

The Massachusetts Supreme Judicial Court has held that an ex-employee may bring a retaliation claim against a former employer for actions taken after the termination of employment. Psy-Ed Corp. v. Klein, 2011 Mass. LEXIS 254 (2011). In this case, the court found that the employer’s baseless lawsuit against an ex-employee, following the ex-employee’s affidavit in support of a charge against his former employer, can serve as the basis of a retaliation claim.

The court looked to the Massachusetts Fair Employment Practices Act, which provides that it is unlawful to discriminate against any person for exercising rights under the statute. The court found that the statute did not require that an employer-employee relationship exist at the time of the alleged unlawful conduct, and held that the statute's retaliation protections therefore extend to actions taken against former employees.

Retaliation claims are on the rise, a trend which will likely continue now that post-termination retaliation claims are permissible in at least one state. While the facts here involved an employer’s frivolous lawsuit, there will likely be claims against former employers for other less obvious post-termination actions, such as providing a negative job reference. Employers should have strong anti-retaliation policies in place and train their human resource professionals and managers on the importance of explaining and documenting decisions made, or actions taken, especially with regard to an employee – or former employee –who has made a claim against the employer.