Friday, June 17, 2011

Worried About Wrongful Termination? Follow These Steps

The Pennsylvania Supreme Court in Shick v. Shirey, 716 A.2d 1231 (Pa. 1998), held that public policy for purposes of wrongful termination lawsuits extended beyond ‘that which has been legislatively enacted.” The Supreme Court held that courts have independent authority to discern public policy in the absence of legislation. But the Supreme Court warned courts that “it is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring.” That is a fairly severe caveat to lower courts that, when reading between the lines, basically says this better be an obvious public policy issue or your decision will be overturned.

As a follow up to specific instances I listed in my last post "Think You Were Wrongfully Terminated? Read This", public policy exceptions to the at-will doctrine have been found where (1) the employee participates in conduct required by law, (2) the employee refuses to perform an act prohibited by law, and (3) the employee engaged in conduct that he/she is privileged to do by law. But, just when you thought the courts were giving employees some ground, they note that even if an important public policy is involved, the employer can discharge the employee if the employer has a separate, plausible, and legitimate reason for doing so. Betts, v. Stroehman Bros., 512 A.2d 1280 (Pa. Super. 1986). This is where these cases get tricky because employers are very good at conjuring up a separate viable reason for termination. Often, I see employers that clearly made up their mind to fire an employee but who are cagey enough to wait and build up evidence to fire the employee for a separate valid reason even though, the real reason for termination contravenes public policy. This is why employees must collect their own evidence to prove the real, illegal, reason for termination.

For instance I handled a case in which an employee was clearly terminated for filing a workers compensation claim, a protected activity. But the employer waited to terminate the employee for a period of time for them to collect additional evidence of his lateness to work and “excessive” days off. These were all things the client had done before filing his comp claim that the employer had neither had a problem with nor previously documented. But when the employer suddenly began to keep detailed records of the employee’s employment practices it became a much more difficult case. This is why if you are in a situation where you fear that you may be terminated by your employer and feel its in response to something protected by public policy you have to both do everything in your power to be the perfect employee (don’t give them anything to point to as the valid reason for termination) and document everything that happens. It is a shame that that is what the law forces employees to do but, unless the law changes, if you want to win your wrongful termination case this is what you have to do. Share this post :
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