Supreme Judicial Court Issues Decision Which Clarifies Important Rules Governing Whistleblower Act Retaliation Claims By Public Employees

In an important decision, the Supreme Judicial Court has clarified the standards that apply to a claim made by a public employee under the Massachusetts Whistleblower Act (“MWA”), G.L. c. 149, § 185, that they have been unlawfully retaliated against for objecting to activities that they reasonably believe are unlawful.

In Galvin v. Roxbury Community College, No. SJC 13754 (January 27, 2026), the court addressed a claim by a state college employee who was the school’s compliance officer regarding the college’s obligation to report sexual offenses to the United States Department of Education under the federal Clery Act. While the facts in this case are specific to that activity and the procedural aspects are complicated, the principles that have been addressed and clarified by the court apply to all public employers covered by the MWA.

The court focused on two of the three essential elements of a MWA claim – (1) that the employee engaged in “protected activity” by objecting to or refusing to participate in an activity that he reasonably believes is a violation of the law; and (2) that his protected activity was the cause of an adverse employment action by the employer.[1] The court’s analysis was informed by two relevant facts. First, it was undisputed that the activity objected to by the employee – failure to make Clery Act reports – was unlawful. Second, the employer raised the issue that the employee himself had failed to make required reports in addition to claiming that the employer was culpable. The court addressed the case with these facts in mind.

First, the court held that because the activity objected to was undisputedly unlawful, the employee satisfied as a matter of law the requirement that he have an objectively reasonable basis for believing that it was unlawful. The court pointed out that in a case where the unlawfulness is disputed and the employee’s belief may be erroneous, the “factual inquiry” on this element of the claim “would be more complex.”

Regarding the employee’s own Clery Act failures, the court held that the MWA “does not exclude objections made by employees involved in the wrongdoing” and therefore did not bar the employee’s claim based on the first element “given that the activity he objected to was undisputedly unlawful.”

Since the employer had challenged the employee’s “good faith” in making the objection, the court addressed that issue, as well. It held that because the objected-to activity was undisputedly unlawful, there was no need to inquire further into his “good faith”. It added that “good faith” would be a relevant subject where the objections were “erroneous”, pointing out that erroneous objections may nonetheless still be protected.

Turning to the employee’s own Clery Act violations, the court held that this issue is relevant to the second required MWA element, i.e., that his protected activity was the cause of his termination. The court stated that “[a]lthough an employer cannot terminate an employee because the employee objected to the wrongdoing, an employer may of course terminate an employee for being responsible for the wrongdoing.” It noted that “[i]n the case of employees who both object to and are involved in the wrongdoing, the cause of the termination requires a difficult, fact-specific inquiry, …”.

This decision is an important explication of the elements of a MWA retaliation claim, especially claims in which the employee’s belief in illegality may be wrong or in which the employee may have been involved in the wrongdoing. Frequently, employees who are dismissed from employment claim retaliation for objecting to illegal conduct. It is essential that employers navigate these issues carefully and seek the advice of counsel.

We are pleased to advise public employers in all aspects of employment/labor relations, including claims of protected whistleblowing activity.

[1] The third element, proof of resulting damages, was not at issue in the decision.