Illegal Retaliation Against Whistleblowing Public Employees (M.G.L.c. 149, s. 185)

• Under the Massachusetts Whistle Blower Act, a public employer, public body or public utility cannot take any retaliatory action against an employee because the employee:

• discloses, or threatens to disclose, to a supervisor or public body a practice of the employer, or of another public employer with whom the employee's employer has a business relationship, that the employee reasonably believes is in violation of a law or a regulation or which the employee reasonably believes poses a risk to public health, safety or environment; (M.G.L.c. 149, s. 185(b)(1))


• The protection against retaliatory action provided by the above does not apply to an employee who makes a disclosure to a public body unless the employee has brought the practice to the attention of a supervisor by written notice and has afforded the employer a reasonable opportunity to correct the practice. (M.G.L.c. 149, s. 185(c)(1))


• An employee is not required to comply with the above if he (1) is reasonably certain that the practice is known to one or more supervisors and the situation is emergency in nature, (2) reasonably fears physical harm as a result of the disclosure, or (3) makes the disclosure to a public body for the purpose of providing evidence of what the employee reasonably believes to be a crime. (M.G.L.c. 149, s. 185(c)(2))


• provides information to, or testifies before, any public body conducting an investigation into any violation of law or a regulation or practice which the employee reasonably believes poses a risk to public health, safety or the environment by the employer, or by another public employer with whom the employee's employer has a business relationship; (M.G.L.c. 149, s. 185(b)(2)) and


• objects to, or refuses to participate in, any practice which the employee reasonably believes is in violation of a law or a regulation or which the employee reasonably believes poses a risk to public health, safety or the environment. (M.G.L.c. 149, s. 185(b)(3))
  
  
• In order to prevail under this statute, a plaintiff must show that they engaged in protected activity and that their participation in the activity played a substantial or motivating part in the retaliatory action. Welch v. Ciampa, 542 F.3d 927, 943 (1st Cir. 2008)


• Any employee aggrieved by a violation of this statute may within two years bring a civil action in superior court. All remedies available in common law tort actions are available. In addition, the court may reinstate the employee, compensate the employee for three times the lost wages, benefits and other remuneration, and order payment of reasonable costs and attorneys' fees. (M.G.L.c. 149, s. 185(d))


• If the court finds such action was without basis in law or fact, the court may award reasonable attorneys' fees and court costs to the employer. An employee nonetheless will not be assessed attorneys' fees if the employee moves or agrees to dismiss the action within a reasonable time after determining that the employer would not be found liable for damages. (M.G.L.c. 149, s. 185(e))

   

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