Probationary Period Rules in Massachusetts: Can You Be Fired?

Federal law does not create a distinct probationary period status, but establishes baseline protections applicable to all employees regardless of tenure. Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) prohibits discrimination based on race, color, religion, sex, or national origin by covered employers (15+ employees). The Age Discrimination in Employment Act (29 U.S.C. § 623) protects employees 40 and older from age-based termination. The Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) requires reasonable accommodation for qualified individuals with disabilities. The Family and Medical Leave Act (29 U.S.C. § 2601) provides unpaid job-protected leave for qualifying reasons, regardless of probationary status.

Federal whistleblower statutes, including the Sarbanes-Oxley Act (18 U.S.C. § 806) and the Dodd-Frank Act (15 U.S.C. § 78u-6), protect employees from retaliation for reporting violations of law or engaging in protected activity, with no probationary exemption. The EEOC enforces discrimination laws and accepts charges from probationary employees. Remedies under federal law include back pay, front pay, compensatory damages, punitive damages (up to $300,000 for large employers under Title VII), and attorney's fees. Federal law also protects employees from termination for refusing illegal acts, reporting safety violations under OSHA (29 U.S.C. § 660(c)), or exercising rights under the National Labor Relations Act (29 U.S.C. § 151 et seq.).

Massachusetts General Laws Chapter 149, Section 24 establishes Massachusetts as a strict at-will employment jurisdiction, permitting employers to terminate employees at any time for any lawful reason or no reason, including during probationary periods. Unlike some states that recognize implied contracts or reasonable expectations of continued employment, Massachusetts courts strictly limit at-will employment exceptions to terminations that violate public policy or statutory protections.

Massachusetts General Laws Chapter 151B, Section 4 provides stronger protections than federal law in certain respects. Massachusetts prohibits discrimination based on race, color, religious creed, national origin, sex, gender identity, sexual orientation, genetic information, disability, military service status, and being a veteran. Critically, Chapter 151B covers employers with just six or more employees—substantially lower than the 15-employee threshold under federal Title VII. This means probationary employees at smaller Massachusetts employers receive state discrimination protection unavailable federally.

Massachusetts also provides unique protections not found in federal law. Chapter 151B, Section 4 includes protection for jurors, witnesses, and victims testifying in court proceedings; employees exercising voting rights; and employees exercising rights under the Massachusetts Domestic Violence Leave Law. The state also protects employees from retaliation for reporting violations of law to government agencies or participating in investigations—broader than many federal whistleblower statutes.

Massachusetts General Laws Chapter 149, Section 24L (Whistleblower Protection Act) extends protection to all employees, including probationary workers, who report violations of law, refuse to participate in illegal activity, or report safety concerns. Termination during probation for exercising these rights violates Massachusetts law. Additionally, employees cannot be terminated for exercising rights under the Massachusetts Paid Family and Medical Leave Law (Chapter 175M) or the Earned Sick Time Law (Chapter 149, Section 148C), even if still on probation.

Remedies available under Chapter 151B include compensatory damages for emotional distress and lost wages, back pay with interest, front pay, reinstatement, and attorney's fees and costs. The Massachusetts Commission Against Discrimination (MCAD) enforces these protections. Unlike federal law's cap on compensatory and punitive damages, Massachusetts provides uncapped compensatory damages and punitive damages of up to treble (triple) the actual damages for willful discrimination.

Massachusetts employers with six or more employees are covered under Chapter 151B (state discrimination law), compared to 15 employees under federal Title VII.

You have 300 days from the discriminatory act to file a charge with the Massachusetts Commission Against Discrimination (MCAD)—substantially longer than the 180-day federal deadline in non-deferral states.

If MCAD defers your case to the federal EEOC, you then have the remainder of the federal 180-day window to file a federal charge; the total combined period cannot exceed one year from the discriminatory act.

No statutory minimum or maximum probationary period exists in Massachusetts; employer policies control.

Massachusetts paid sick leave law (Chapter 149, Section 148C) applies after an employee completes 90 days of employment, regardless of probationary classification.

At-will employment in Massachusetts has limited exceptions that protect probationary employees. The primary exception is termination in violation of public policy, which Massachusetts courts narrowly construe. Public policy exceptions include: (1) termination for jury duty or court service; (2) termination for military service or militia duty; (3) termination for exercising voting rights; (4) termination in retaliation for whistleblowing (reporting violations of law); (5) termination for exercising rights under the Domestic Violence Leave Law; (6) termination for reporting safety violations; and (7) termination for refusing to participate in illegal acts.

However, these exceptions apply only if the termination was the sole or predominant reason for discharge. If an employer can articulate a legitimate, non-retaliatory reason for termination, even a probationary termination may survive challenge. Courts apply rational basis review to public policy challenges—a less protective standard than pretext analysis under discrimination law.

Senior executives and employees with individual employment contracts may fall outside at-will employment if the contract explicitly specifies a probationary period with defined post-probation employment terms. However, probationary periods themselves do not create implied contracts; courts require explicit, written agreement.

Union members subject to collective bargaining agreements are not governed by at-will employment. The relevant collective bargaining agreement determines probationary rights, typically including just-cause termination protection. National Labor Relations Act Section 7 (29 U.S.C. § 157) protects all employees, including probationary workers, from retaliation for union activity or protected concerted activity—a federal protection that preempts Massachusetts at-will rules.

Probationary status provides no exemption from Chapter 151B discrimination protections, MCAD jurisdiction, wage and hour laws, OSHA safety protections, or jury duty protections. Employers cannot circumvent these statutory protections by designating an employee as probationary. Similarly, probationary employees retain rights under the Massachusetts Earned Sick Time Law after 90 days and rights under the Paid Family and Medical Leave Law after eligibility periods are met.

Step 1: Document Everything. Immediately create a contemporaneous written record of the discriminatory, retaliatory, or illegal conduct. Record dates, times, locations, individuals present, exact language used, and circumstances. Keep copies of emails, text messages, performance reviews, and any written warnings. Retain records of your job performance, sales figures, metrics, or other objective evidence of satisfactory performance. Take screenshots of digital communications and save them with timestamps. Store copies outside your work email in a personal cloud account or external drive. Document any changes in treatment following your protected conduct (reporting discrimination, requesting accommodation, refusing illegal task). Note any statements by managers or HR linking termination to protected activity or protected status.

Step 2: Attempt Internal Complaint. Request a meeting with your direct manager or HR department to report the discriminatory conduct or alleged violation. Put your complaint in writing via email, copying HR when possible. Use clear language: 'I am reporting discrimination based on [protected characteristic]' or 'I am reporting illegal conduct' or 'I am reporting unsafe working conditions.' Describe the conduct, dates, and impact. Request written acknowledgment of your complaint and ask what steps will be taken. Keep copies of all written communications. If your employer has a formal complaint procedure, follow it precisely and document your compliance. Request interim measures such as schedule changes or supervisor reassignment if applicable. Note the date and content of all internal meetings. Do not resign; allow the employer to make any termination decision. Understand that internal complaints may alert the employer to potential legal claims, but they also demonstrate your good-faith effort to resolve the issue internally and may limit future damages claims if you fail to pursue internal remedies.

Step 3: File with the Massachusetts Commission Against Discrimination (MCAD). You have 300 days from the discriminatory act to file a charge—substantially longer than federal timelines. Visit the MCAD website (mass.gov/mcad) or call 617-994-6000 to request a charge form or file online. The charge must include: (1) your name, address, phone number, and email; (2) employer name, address, and phone number; (3) the date the discrimination occurred; (4) description of the discriminatory conduct with specific facts and dates; (5) the protected class or activity involved; (6) names of witnesses; (7) copies of relevant documents (emails, performance reviews, termination letter). File the charge by mail to: Massachusetts Commission Against Discrimination, 100 Cambridge Street, Suite 601, Boston, MA 02202, or online at mass.gov/mcad. Request a receipt confirming filing date and docket number. Keep this documentation. Filing a charge with MCAD triggers a 'dual filing' with the federal EEOC in Boston (unless you have already filed federally). If you file federally first, EEOC will automatically refer your charge to MCAD. You do not need to file separately with both agencies; filing with one triggers joint processing.

Step 4: MCAD Investigation Process. MCAD will notify the employer of your charge within two weeks and request a detailed written response. The employer typically has 10 days to respond. MCAD investigators will review both parties' submissions and may conduct interviews with you, the employer, witnesses, and relevant HR personnel. The investigation typically takes 90 days to six months, though complex cases may take longer. MCAD may request additional evidence or hold investigatory conferences with both parties. You will be notified of MCAD's findings. If MCAD finds probable cause that discrimination occurred, the agency will issue a probable cause determination and attempt conciliation. If conciliation fails, MCAD may refer the case to their Adjudication Section for a formal hearing before an administrative judge, or you may request a right-to-sue letter to pursue a civil action in state or federal court. If MCAD finds no probable cause, you still have the right to request a right-to-sue letter and file a private lawsuit within 30 days. Expect to provide additional evidence during investigation, potentially including: performance reviews, compensation history, internal communications, evidence of comparator treatment, documentation of the protected conduct, witnesses' contact information, and timeline of events.

Step 5: Consult an Attorney and File Civil Action. Contact an employment law attorney licensed in Massachusetts after documenting the conduct and before the 300-day MCAD filing deadline approaches (or 180 days federally if applicable). An attorney specializing in employment discrimination can evaluate your claim, advise on likelihood of success, and represent you in MCAD proceedings or civil court. Plaintiffs in Massachusetts discrimination cases can recover compensatory damages (emotional distress, lost wages) without statutory caps, punitive damages of up to three times compensatory damages, back pay with interest, front pay (future lost wages if reinstatement is impractical), reinstatement, and attorney's fees and costs. After MCAD issues a probable cause determination and conciliation fails, or after you receive a right-to-sue letter, you may file a civil action in Massachusetts Superior Court or federal district court (if federal questions are involved) within three years of the discriminatory act. Federal court filing is often preferable if federal law violations (Title VII, ADA, ADEA) are involved, as the substantive law may be more developed. Your attorney will file a complaint, engage in discovery, potentially attempt settlement, and proceed to trial if necessary.