An Adverse Employment Action May Be Found Even When the Employee Receives a Raise

It is counterintuitive – how can the employer retaliate against an employee by giving the employee a raise? Yet that was the conclusion of the Supreme Judicial Court in City of Newton v. Commonwealth Employment Relations Board, SJC-13655 (May 22, 2025). A police sergeant who was active in union leadership was transferred by the Police Chief from working regular daytime shifts with weekends off to a position working irregular nighttime hours, weekends, and holidays. The transfer resulted in an increase in pay and complied with the collective bargaining agreement.  

The sergeant had been involved in a few union disputes with departmental leadership before the transfer. In addition, he had been disciplined for insubordination and disruptive behavior. The city raised the instances of prior discipline as reasons for the transfer to negate the union’s claim of an adverse employment action. The SJC noted that action by the employer that materially disadvantages the employee qualifies as an adverse employment action. Material disadvantage is measured objectively – is the disadvantage “objectively apparent to a reasonable person in the employee’s position”? In this instance, the sergeant testified to the stress on his family and himself by leaving after six years a daytime shift with weekends off. The SJC affirmed the finding of the Commonwealth Employment Relations Board that, despite the pay raise, the transfer constituted an adverse employment action. The SJC also clarified that it is not necessary for the employee to have a clean work record. “Nothing in our jurisprudence supports the proposition that an employer is free to retaliate against an employee for union activities because the employee’s employment record is blemished.”