Massachusetts Lawyers Weekly sought commentary from Bennett & Belfort partner, Eric LeBlanc, in its article on a recent U.S. Bankruptcy Court decision concerning a contract worker’s claim against her former employer’s Chapter 11 bankruptcy estate for severance pay. (“At-will worker can seek severance against bankruptcy estate: Company’s failure to offer benefits deemed retaliatory,” Mass. Lawyers Weekly, December 21, 2017.) Dr. Christine Briggs, while an at-will employee of Genesys Research Institute, Inc., was one of a number of workers who filed whistleblower complaints against the company for alleged misuse of restricted funds. Although an employer is not required to offer severance pay when laying off an at-will employee, Dr. Briggs discovered that when Genesys terminated at-will employees in a series of layoffs prior to filing for bankruptcy, it had systematically offered severance to those who had not lodged whistleblower complaints but failed to offer severance to those who had made complaints. In the case, In Re: Genesys Research Institute, Inc., Justice Joan Feeney concluded that the employer’s conduct was retaliatory, and thus Dr. Briggs, although an at-will employee, was entitled to claim severance pay.
Attorney LeBlanc remarked that the Judge’s decision is significant because the court sustained a claim concerning an employer’s retaliatory conduct that occurred after the employee’s termination. “There are mitigating factors in this case because it was a bankruptcy decision with a different burden-shifting, and the trustee made limited attempts to refute the claim,” Attorney LeBlanc told Lawyers Weekly. “But it could still be applicable in assisting plaintiffs in getting over an initial hurdle regarding a potential retaliatory action that occurs post-termination… Put more simply, you can use post-termination employer behavior to potentially prove either discrimination or retaliatory animus.”
From a common-sense, layperson’s perspective, it goes without saying that retaliation and discrimination by any person or entity against another can post-date the technical termination of the relationship between perpetrator and victim. The case law in this regard is, however, a work in progress.