Articles

Gavriela M. Bogin-Farber quoted at length in MLW on clarification of personnel record law in light of wrongful discharge claim

Gavriela M. Bogin-Farber, senior associate in the firm’s Employment Department, was quoted in a Massachusetts Lawyers Weekly (MLW) article on Oct. 22, 2021. The article, “SJC to clarify how far personnel file law goes,” details Meehan v. Medical Information Technology, Inc., for which Gavi authored an amicus brief on behalf of the Massachusetts Employment Lawyers Association, ACLU of Massachusetts, Fair Employment Project, GLBTQ Advocates and Defenders, and Massachusetts Law Reform Institute. The Supreme Judicial Court will hear arguments in Meehan on Nov. 1, 2021 and will have the opportunity to clarify whether the plaintiff’s exercise of his rights under the state’s Personnel Records Act can serve as the basis of a suit alleging wrongful discharge.

Read the full article in Massachusetts Lawyers Weekly (subscriber content).

From the article:

The Appeals Court’s decision already has had attorneys who represent employees second guessing how they advise their clients, agreed Boston attorney Gavriela M. Bogin-Farber.

Bogin-Farber authored an amicus brief in Meehan on behalf of the Massachusetts Employment Lawyers Association, ACLU of Massachusetts, Fair Employment Project, GLBTQ Advocates and Defenders, and Massachusetts Law Reform Institute.

Until recently, it had been “second nature” for attorneys to instruct their clients as a first step to request copies of their personnel files, another right guaranteed by §52C, she noted.

Now, the Appeals Court’s sanctioning of a firing allegedly prompted by a request made under §52C is calling the wisdom of that guidance into question.

‘Can we even do that safely?’ Bogin-Farber asked rhetorically. ‘We may be putting people’s jobs at risk by providing that advice.’

While the plaintiff is being supported by the Attorney General’s Office as well as the groups on whose behalf Bogin-Farber wrote, the defendant has received amicus support from the Pioneer Institute.

… Bogin-Farber fears the Appeals Court majority in Meehan may have grappled with the central issue in the case as an ‘abstract concept,’ when it is anything but.

‘This has very serious real-world implications’ for ‘every single person who is employed in the commonwealth,’ she said.

Only by using §52C to request his personnel file will an employee first gain access to relevant email sent by his manager, for example.

‘An employee will be at a serious disadvantage in advancing their rights in a litigation or pre-litigation context if they cannot gain access to their records,’ Bogin-Farber said.

In her brief, Bogin-Farber noted that there are ‘myriad examples of how the [Personnel Records Act’s] rights help employees enforce their rights under other substantive statutes,’ such as the 2019 Appeals Court case Charles v. Leo, in which a violation of the PRA supported a jury’s $10 million punitive damages award.

The jury found that the defendant excluded key documents from the plaintiff’s personnel file and then sought to conceal their conduct over a period of years.

‘Thus, the extent to which the employer failed to comply with its obligations under the PRA, which also impaired the employee’s ability to exercise her rights under same, affected the outcome of the employee’s Chapter 151B claims,’ Bogin-Farber wrote.”