Remembering the Public Policy Exception to the Employment at Will Doctrine

It is often said by employers who operate in at-will employment states that they can terminate an employee for any reason, or no reason at all, so long as they do not do so because of a protected characteristic (race, sex, disability, etc.).  While generally true in most circumstances, a recent decision from the Fifth Circuit provides an excellent reminder that there are limited exceptions to this rule that are lurking on the periphery. 

In Swindol v. Aurora Flight Sciences Corporation, _ F.3d _, 2016 WL 4191136 (5th Cir. 2016), an employer in Mississippi fired an employee when it discovered that the employee had his registered firearm stored in his locked vehicle on company property.  On a certified question from the Fifth Circuit, the Mississippi Supreme Court held that, because there was a statute permitting employees to keep registered firearms in their locked vehicles on the employer’s property, it was against public policy to terminate an employee for this reason.  Thus, the Fifth Circuit found that the employee had stated a claim for wrongful discharge and permitted him to proceed with his claims.

Much like Mississippi, Wisconsin is an at-will employment state with a statutory provision that prohibits an employer from barring employees with concealed carry licenses from properly storing registered firearms in their vehicles on company property.  Wis. Stat. § 175.60(15m)(b) (“An employer may not prohibit a licensee . . . as a condition of employment, from carrying a concealed weapon . .. or from storing a weapon . . . in the licensee’s . . . own motor vehicle, regardless of whether the motor vehicle is used in the course of employment or whether the motor vehicle is driven or parked on property used by the employer.”)  Also, much like Mississippi, Wisconsin recognizes public policy exceptions to the employment at-will doctrine through a cause of action for wrongful discharge.  See Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 572–73, 335 N.W.2d 834, 840 (1983) (“[A] narrow public policy exception should be adopted in Wisconsin [that] an employee has a cause of action for wrongful discharge when the discharge is contrary to a fundamental and well-defined public policy as evidenced by existing law. . . .  The public policy must be evidenced by a constitutional or statutory provision.”)

While obviously not controlling precedent, one could certainly see the same arguments that prevailed in Swindol being persuasive to a Wisconsin court considering the issue.  Thus, while the employer in Swindol likely felt it could legally terminate the employee for having a weapon stored in his vehicle as the same is not a protected characteristic, it is important to remember the limited exceptions that can be invoked through public policy arguments.

This could include any right or interest protected or mandated by the Wisconsin constitution or by state statute.  For example, an employer likely could not fire an employee for participating in mandatory jury duty that is required by state statute or for complying with a lawfully issued subpoena that mandates the employee’s attendance in court.  Similarly, an employee cannot be fired for refusing to drive a commercial truck without a valid driver’s license (Kempfer v. Automated Finishing, Inc., 211 Wis. 2d 100, 114, 564 N.W.2d 692, 698 (1997), for refusing to provide medical services they are not qualified to provide (Winkelman v. Beloit Mem’l Hosp., 168 Wis. 2d 12, 24, 483 N.W.2d 211, 216 (1992) or for reporting abuse or neglect of nursing home residents (Hausman v. St. Croix Care Ctr., 214 Wis. 2d 655, 667, 571 N.W.2d 393, 397 (1997).

Employers would be well-served to remember these narrow, albeit important, exceptions to the employment at-will doctrine so as to avoid potential claims for wrongful discharge.

If you have questions about this article, please contact an attorney at Mallery & Zimmerman.