Choices matter: having your cake and eating it too


wage complaint retaliation wrongful termination

The facts relating to the wrongful termination of Mr. Fernandes from the Attleboro Housing Authority are unfortunately common -- and also pretty simple. Mr. Fernandes filed a “Non-Payment of Wage and Workplace Complaint Form” with the Attorney General's Office alleging he was being underpaid in his position. He then told his supervisor that he filed the complaint and requested certain pay records. One month later, the employer terminated him, saying he was being laid off due to "budgetary constraints," and he would get two weeks of severance pay. See Fernandes vs. Attleboro Housing Authority, 470 Mass. 117 (2014).

The employee sued Attleboro in Superior Court for the unpaid wages and retaliation for his filing a wage complaint with the AG's Office. See M.G. L. c. 149, §§ 148 and 148A.

His case went to jury trial, and the jury awarded Mr. Fernandes $2,300 for unpaid wages and $130,000 for lost wages due to the retaliation. That amount was later tripled because the relevant wage laws call for "treble damages" when the employee wins. See M.G. L. c. 149, § 150 (“An employee so aggrieved who prevails in such an action shall be awarded treble damages, as liquidated damages, for any lost wages and other benefits and shall also be awarded the costs of the litigation and reasonable attorneys' fees.”)

As a public sector worker, Mr. Fernandes could have taken a different route. He could have initiated administrative proceedings under the civil service law, see M.G. L. c. 31, §§ 41-45, as opposed to suing in court. And one of the remedies available under the Civil Service Law is reinstatement. See M.G. L. c. 31, § 42.

After the trial, while Mr. Fernandes won and was awarded a decent chunk of change, he also wanted to go back to work in his prior position. He filed a post-trial motion for reinstatement. It was denied, and he appealed that denial.

Massachusetts' highest court took the case and turned him down again, explaining that reinstatement was not available when suing under the Massachusetts Wage Act for wages and retaliation. While it was available to public sector employees pursuing claims through administrative channels, essentially Mr. Fernandes could not have his cake and eat it too. In other words, he could not get the damages available under the Wage Act while also getting the reinstatement available under the civil service law.

The Doorways

As I like to do in each blog post, I point out the doorways each party approached or went through that from an employment law perspective were meaningful. Here, one doorway occurred when when Mr. Fernandes filed the wage complaint with the AG's Office. (As I used to work there and receive these wage complaints, I understand just how meaningful this is on both the employee and employer sides.) On the employer side, they approached and passed through their own doorway when they decided to fire him in retaliation for filing that wage complaint. And they paid dearly for that act by way of being ordered to pay out triple the amount of damages after also needing to defend themselves in employment litigation for several years.

As also becomes clear through the Supreme Judicial Court's decision, the employee passed through another doorway when he chose to file his action in Superior Court as opposed to using the civil service procedures. Ultimately, it meant a choice between money or getting his job back.

For some people, going back to their old job is more meaningful. For other people, it's the money. But sometimes like here, legally you can't have your cake and eat it too.

As an employee or employer, make sure you are best helping yourself as you are approaching or passing through a doorway. Contact me for advice as to the personal doorways you're looking at.

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