Waiting for a Wrongful Discharge

by John Gause, Esq.
Published: Maine LAWYERS REVIEW, March 29, 2000

A reading of the Law Court’s decisions addressing wrongful discharge is almost enough to discourage one into believing that there will never be a common-law exception to the employment-at-will doctrine. The Court had made short shrift of all efforts to have the Court recognize this potential tort. Time and again the Court has tersely told litigants that it has yet to see circumstances that justify a departure from the time-honored employment-at-will rule.

Nevertheless, we must remember that the Court has not said that it will never adopt this claim. On the contrary, in Larrabee v. Penobscot Frozen Foods, Inc., the court affirmatively stated its willingness to consider a cause of action for wrongful discharge: “We do not rule out the possible recognition of such a cause of action when the discharge of an employee contravenes some strong public policy.” The right circumstances have simply not arisen. In addition, there are only a handful of cases that address the subject.

It would be a costly mistake to write off this potential cause of action off altogether. The vast majority of states recognize the claim. Juries will be highly sympathetic to an employee who has been terminated in violation of a strong public policy, and verdicts in wrongful discharge cases are unfettered by the damages caps found in most other employment discrimination claims.

It is true that the employment-at-will doctrine has stood the test of time in Maine. Essentially, the common law allows employers to terminate employees with indefinite terms of service at any time for any reason. The inverse right available to employees is that they are free to leave at any time they choose and for whatever reason. The sad reality, however, is that employees are usually harmed the most by this rule because employers often have superior resources, and are able to quickly rebound from an employee leaving, whereas the employee must scamper to find another job that will pay the mortgage.

It is important to note that a “wrongful discharge” cause of action is different from a requirement that an employee only be terminated “for cause.” The Law Court has definitively ruled out the possibility that employees for indefinite terms can only be terminated “for cause.” Our legislature is currently considering a bill that would create a “cause” requirement for termination. LD 2147, “An Act to Ensure Just Cause Termination in Employment,” currently pending before the Joint Committee on Labor, would force employers to retain workers who do not violate the employer’s rules or orders. Employers with five or more employees would be subject to the Act, and it would apply to employees who have worked for one year or more. Many states have passed similar laws.

A cause of action for wrongful termination arises when the employer violates some “strong public policy.” “Public polices” only exist where the public at large has some interest in the outcome. Unlike a “for cause” requirement, courts do not recognize a wrongful discharge claim in circumstances involving strictly personal disputes between an employer and an employee. A 30-year employee who is terminated for wearing an ugly tie would thus have a potential claim for termination “without cause” (in the right jurisdiction), but no claim for wrongful termination.

In Maine, the Law Court’s recent decision in Taliento v. Portland West Neighborhood Planning Council, made strong pronouncements of our employment-at-will doctrine. The Court restated the rule that contract for employment for indefinite length of time is terminable at the will of either party. The Court stated that, “Parties may provide that an employer is not free to discharge an employee without cause, but the intent to do so must be clearly stated. Such a restriction cannot be implied from the employment contract.” At issue was whether a personnel policy defining a method of discharge was enforceable, a notion the Court rejected.

Only four cases in Maine have directly addressed the potential claim of wrongful discharge. In three of the cases, the Court refused to adopt the tort under the circumstances presented. In MacDonald v. Eastern Fine Paper, Inc., plaintiff brought a “tort claim for retaliatory discharge” based on his belief that his employer fired him for filing a workers’ compensation claim. Although the Court did not rule out the possibility of bringing a wrongful termination claim under similar circumstances as those alleged, it held, without explanation, that “the record demonstrates conclusively that no public policy has been violated by MacDonald’s discharge.”

If MacDonald is read in conjunction with Bard v. Bath Iron Works Corp., the argument could be made that the Court will not recognize such a wrongful discharge claim because a remedial scheme is already provided in Maine’s Workers’ Compensation Act. In Bard, plaintiff alleged that he was fired for reporting defects in BIW’s quality assurance process. He believed the flaws to be contrary to BIW’s contracts with the United States Navy. The Law Court rejected plaintiff’s claim under the Whistleblower Protection Act because he had not reported what he believed to be illegal activity.

The Court also rejected Bard’s wrongful discharge claim for the following reason: “Where a statutory right and remedy are provided, there is no need to recognize a redundant tort. The Whistleblowers’ Protection Act embodies a statutory public policy against discharge in retaliation for reporting illegal acts, a right to the discharged employee, and a remedial scheme to vindicate that right.” Thus, in all cases where a statutory remedy is provided, the Court will probably not adopt a separate tort claim for wrongful discharge.

In Larrabee v. Penobscot Frozen Foods, the Law Court again refused to recognize a claim for wrongful discharge. In Larrabee, plaintiffs alleged that defendant expressly or impliedly promised to refrain from discharging them in bad faith or without good cause. They alleged that they were fired without warning for “hiding in a space constructed by boxes when they should have been working.” The Court found no violation of public policy. Rather, the circumstances presented “the attributes of nothing more than a purely private dispute.”

In Pooler v. Maine Coal Products, the Court did not decide whether a wrongful discharge claim could be asserted. Rather, the Court found that the trial court did not commit obvious error in refusing to give a wrongful discharge instruction to the jury, which later returned a verdict for the defendant on the plaintiff’s Whistleblowers’ Protection Act (“WPA”) claim. Plaintiff alleged that defendant fired him for refusing to drive a truck with locking brakes and bald tires. Defendant presented a qualified independent mechanic who testified that the vehicle met all state inspection standards. The trial judge rejected the plaintiff’s wrongful discharge claim (without proper objection by plaintiff), and it instructed the jury that the Plaintiff had to prove under his WPA claim that the defendant violated Maine’s motor vehicle laws, and that the violation put someone’s health or safety at risk.

The Law Court identified “only one potentially significant difference between the requested jury instruction and the court’s instructions with regard to the cause of action under the Whistleblowers’ Protection Act. Under the Act, plaintiff is required to show that the violation of law would put either his or somebody else’s health or safety at risk.” The Court found no obvious error because if the plaintiff had shown a “violation of the motor vehicle laws, he would necessarily have established the threat to the health or safety of himself or another.”

The United States District Court for District of Maine has similarly found no cases warranting a wrongful discharge cause of action. Although it has recognized strong public policies in the areas of age discrimination and First Amendment activity, it too has declined to adopt a “redundant tort” where a remedial scheme is already provided by statute.

Most other states have adopted some form of exception to the employment-at-will rule based on violations of clearly identified public policies. These cases are helpful to our understanding of what factors the Law Court might consider in determining whether a violation of “strong public policy” has been shown. Wrongful discharge claims have generally been found where employees refuse to disobey a statute, regulation, or constitution, such as refusing to commit perjury; where they assert a legal right, such as filing a workers’ compensation claim; or where employees do what the law requires, such as performing jury service. Some courts have found public policy violations where employees report violations of administrative rules and professional codes of conduct and responsibility.

When we are faced with the decision whether to bring the claim, the first thing we need to do is determine whether the right we are claiming is already protected by statute. If there is a statutory remedial scheme available, the Law Court is unlikely to find a “redundant tort.”

We should then look for a statutory, constitutional, regulatory, or administrative rule demonstrating a “strong public policy.” In Winkelman v. Beloit Memorial Hosp., the Wisconsin Supreme Court held that a nurse who refused to perform work beyond her qualifications was terminated in violation of a public policy contained within the Wisconsin Administrative Code that “a nurse should not offer or perform services for which he or she ‘is not qualified by education, training or experience.’” The hospital argued that the policy was not contained in a statute or constitution, but the court noted that “this specific statement of public policy is merely an elaboration of the broad public policy of [the Wisconsin statute] that patients should be protected from negligent nurses.”

Examples of areas where there is probably a strong public policy in favor of the employee asserting a legal right in Maine would be a governmental employee filing a notice of claim under the Tort Claims Act or requesting a copy of her personnel file. Similarly an employee should not be terminated for filing a claim for governmental assistance, such as AFDC or social security benefits.

When confronting situations where the employee refuses to commit an illegal act, be mindful of the WPA’s potential for trumping a wrongful discharge claim. The WPA prohibits discrimination because of an employee reporting illegal acts to employer or public body; reporting conditions or practices that put at risk someone’s health or safety; requests to participate in investigation, hearing or inquiry of a public body or court; and the refusal to carry out a directive that would expose the employee or any individual to a condition that would result in serious injury or death.

Incidentally, the Supreme Court has ruled out the possibility of a wrongful discharge cause of action where an employer terminates an employee in order to avoid contributing to, or paying benefits under, an employee’s pension fund. InIngersoll-Rand Co. v. McClendon, the Court held that the Employee Retirement Income Security Act preempts such a claim.

Maine is poised to join the rest of the states that have adopted a wrongful discharge cause of action. If an employee is terminated in contravention of a “strong public policy,” and there is no statutory remedial scheme available, the Law Court will likely adopt the tort. We must not take the Court’s existing cases as an indication that bringing such a claim would be an exercise in futility.