Wrongful Discharge: The Public Policy Exception to At Will Employment
By Glenn Solomon

“He has paid dear, very dear, for his whistle.”
—Benjamin Franklin

The term, “wrongful discharge,” has a legal meaning that is a little different from the one you probably have in mind. Usually it just means a discharge that is unfair in the span of all things. But as far as the law is concerned it refers to a discharge that is illegal because it hurts the public interest and therefore violates public policy. There are two basic kinds of wrongful discharge. Both of them have to do with discharge as a form of retaliation for engaging in activities that are protected as a matter of public policy. The idea of protected activity is key. Wrongful discharge cases look a bit like employment civil rights in which someone gets fired for doing something protected like taking family medical leave. The difference is that the wrongful discharge law is aimed at protecting public interest rather than your personal civil rights. It just so happens that in the circumstances to which the law applies you represent the public interest.

Performing a Public Duty

This type of wrongful discharge has to do with whistle blowing. In most states it is illegal to fire you for performing a public duty. You work as a caregiver at a nursing home that has a contract with the county to care for some mentally disabled patients. There are state regulations that mandate levels of care and living standards that must be met to qualify for federal and state funding for these patients. 

You are painfully aware of the squalor in which some of the mental patients live. You know that their living conditions violate federal standards. One morning when you start your shift you find that one of your charges has been sleeping in sheets soaked with her urine and that these sheets have not been changed in days. You corner your supervisor and privately go over the situation with her. You tell her that unless things improve, you are going to the Department of Health and Human Services to report violations. 

Your supervisor is visibly upset by this. A week later she fires you, when you call in sick. No one that you know of has been disciplined, much less fired, for calling in sick. 

This is probably a good wrongful discharge case. However, it's better to actually report a violation to the authorities and make a record of the report by giving your name than to threaten to report or to report anonymously. That way if there is retaliation, your employer won't be able to deny that you blew the whistle. 

The idea here is that, as a citizen, you have a duty to the public to see that rules and standards that are meant to protect the public are followed. The state doesn't want you to lose your job for performing this duty. The state is aware that you are vulnerable and afraid of losing your job. The wrongful discharge remedy is supposed to take away your fear and encourage you to communicate freely.

Another example of a public duty is serving on a jury. If your employer fires you because you are called to jury duty, many states will recognize this as a wrongful discharge. The state doesn't want to make fulfillment of your public duty a threat to your welfare. Hey, they need you on that jury. So, the state makes it a violation of public policy for the boss to fire you for being called to serve as a member of the jury pool.

There are lots of other possible examples. Are you in the National Guard? Well many states require your boss to hold your job for you if you are called up, or if you have to report for training. If he fires you because you are called up, it may be a wrongful discharge. Any time you are doing something that benefits others in the community you may be able to find protection from the law if you lose your job for whatever it is you are doing.

Exercising Your Rights As an Employee

You have limited rights as an employee that belong to you just by virtue of having your job. The right to seek workers’ compensation if you are injured on the job is one. Some of these rights have broad significance to the community. The workers’ compensation system, to stay with the example, came about as a result of effect that injuries to workers in dangerous professions were having on the community as a whole.

The families of these workers were going hungry. Once in a while the boss had to pay out big time when one of these guys or gals succeeded in getting their case to a jury. Then he might have to close his business, and that skyscraper that he was working on was only half built. So lawmakers finally said, “Enough! We are going to make sure that your health care and support needs are met if you are injured on the job, and we are going to protect your boss from big bad jury awards. We are going to make a statute that does this and print it in the statute books. It gives you the right to file a claim for workers’ compensation benefits if you are hurt on the job.” 

This is a right that belongs to you as an employee, and it is of public significance because it’s in a statute book. Now the boss may very well want to discourage you from filing a claim. It could be that he is self-insured, or it could be that his workers’ compensation insurance premiums increase every time a claim is filed. He may think that you are nothing but a lazy malingerer who is out to commit fraud. If he fires you because you made a claim for workers’ compensation benefits however, it is a wrongful discharge. This is because he fired you for exercising a right of public importance that belongs to you as an employee.

You also have a right not to be treated worse on the job because you are a member of a protected classification. If you file a charge with an administrative agency in which you claim discrimination, and your boss fires you for filing the charge, you may have a wrongfuldischarge case.

Additionally, the law that protects you from discrimination also protects you from retaliation for filing a claim. Some states say that the remedy that is in the statute for retaliation is enough to protect the public interest. Other states allow an additional claim for wrongful discharge.

Supposing you don’t file a claim for discrimination. You just resist by protesting your treatment out loud to the boss or by filing an internal grievance. A week later, he fires you. If you can show that pursuing your right to be free from illegal discrimination was a factor in your termination, you have a claim in those states that already recognize wrongful discharge. However, in Georgia, for example, you may just be out of luck. Let’s say that you are a sales clerk in a big department store with locations all over the country. Your boss is hitting on you. He’s aggressive. You resist. Then, he fires you for low sales volume. However your sales volume is better than average. After your boss fires you, you file an administrative charge of sex discrimination based on your termination. You withdraw the claim and sue the store for sex discrimination and wrongful discharge.  

The store argues that the statutory sex discrimination remedy is enough. The court says that you have an additional remedy for wrongful discharge because your resistance to your supervisor’s advances was a protected activity. You were pursuing your right to be free from sexual harassment. That’s a right of public importance. So if your resistance was a motivating factor, the boss should pay for his violation of the public interest. That’s the way it would go in those states where the doctrine of wrongful discharge is fully established.

You may also have rights as an employee that are not of public importance. Let’s say you’re in sales for a large manufacturer and you land a big client. Let’s say as well that after the boss took this client away from you, and you sued to get the commissions for all sales to this client. The boss fires you after you file your case. Is there a wrongful discharge? Most courts would say no, because the right to the commissions is not a right of public importance. It is not a matter of statute but personal contract.

On the other hand, lets say you got a really crafty lawyer. He reasons that commissions are like wages. In fact, commissions are wages in most states. So, he brings a claim to collect unpaid wages in addition to the claim for breach of contract. Your right to collect wages is of public importance, and it is protected by statute. So if the boss fired after you filed a wage claim, you might have a wrongful discharge as well. In some states, however, there is a statutory remedy for retaliation against you for trying to collect wages, and you may be limited to whatever relief you can get under the statute. It is called preemption when access to one kind of remedy is blocked by the availability of another that is preferred by law. So in this case, the wrongful discharge claim might be said to be preempted by the statutory remedy. Courts rationalize preemption by saying that it was intended by the legislature and that the remedy under the statute is adequate, although it never really is.

The Importance of Wrongful Discharge to You

Wrongful discharge doctrine developed as judge made law like the law on negligence or personal injury. Because it’s like a personal injury, the remedy for wrongful discharge may exceed what you can get under a discrimination statute. For example, Title Seven protections for retaliation and wrongful discharge claims can cover the same conduct. But Title Seven sets limits on what you can collect for pain and suffering damages. It also limits punitive damages. Those limits normally don’t apply to personal injury claims. So wrongful discharge can be a more powerful deterrent against retaliation than discrimination laws.

Title Seven and many state discrimination statutes require you to file an administrative complaint before you can obtain the right to take your boss to court. This requirement does not apply to a wrongful discharge claim. Under Title Seven you may have as little as 180 days to file your complaint, or 300 days in a “deferral” state. If you don’t make it in time, you lose your right to sue.

Wrongful discharge claims are treated by the courts like personal injury claims. You may have as long as three years to file your claim in court in some states. You will have only a year in some other states.

Let’s go back to the example in which you are a salesperson being hit on by the boss.  You are a bit embarrassed by the whole scenario. So a year has gone by and you haven’t filed anything. You are talking the situation over with a close, very smart friend. He urges you to see a lawyer before it’s too late. The lawyer will inform you that you missed the Title Seven filing deadline. However the personal injury statute of limitations in your state is two years. You still have time to file a wrongful discharge claim, and you have gotten over your embarrassment.

As an exception to the at-will rule, wrongful discharge works about as well as the civil rights or statutory exception. In fact several states now have statutes that include what was once considered wrongful discharge in the constellation of civil rights protections. In these states the common law claim for wrongful discharge is preempted by the statutory claim. Proving wrongful discharge works like proving discrimination, with the boss using the at-will rule as a shield to protect conduct that hurts the public good.

The best thing about wrongful discharge is that it signifies that the courts (and some legislatures) have finally recognized (after being dragged kicking and screaming) that allowing the boss to fire you for anything he wants can, in at least some instances, be harmful to the public good.

Wrongful Discharge: The Public Policy Exception to At Will Employment by Glenn Solomon  
Based on materials from the forthcoming Berrett-Koehler book You Could Be Fired for Reading This Book Publication Date: May, 2004 Copyright Glenn Solomon