Wrongful Discharge – An Exception To The At-Will Employment Doctrine Lawyer Milwaukee Wisconsin
Wisconsin has long been an “at-will” employment state. However, the right to summarily fire an employee is not all pervasive. There are a number of recent developments which have eroded the concept of employment-at-will. “Wrongful discharge” is one of the numerous exceptions to the employment-at-will doctrine. In 1983, the Supreme Court of Wisconsin held that when an employee refuses to act in an unlawful manner, the employer would be violating public policy by terminating the employee for such behavior. “Public policy” is defined as that which embodies the community common sense and common conscience.
In a 1986 case, a company fired one of its cashiers when she refused to reimburse the company for its loss after she cashed a customer’s stolen check. Section 103.455 of the Wisconsin Statutes prohibits employers from making a wage deduction for stolen property. The Supreme Court of Wisconsin found that the employer’s ultimatum–“pay or be fired”–violated the public policy evidenced by section 103.455. The Court established a two step process for plaintiffs to follow in public policy cases. They must (1) identify a fundamental and well-defined mandate of public policy that derives from a constitutional or statutory provision, and (2) establish that their discharge violated that public policy.
In 1988, the Court expanded the doctrine further finding that an employee may prevail on a wrongful discharge claim with proof that he or she was compelled to act in a way that was contrary to the letter or spirit of a statutory or constitutional provision.
Recent Expansion of Wrongful Discharge Doctrine.
More recently, the Supreme Court of Wisconsin decided a wrongful discharge case involving two nursing home employees who were fired shortly after they reported mistreatment of patients. The employees were allowed to pursue a wrongful termination suit even though the employer had not requested the employees to violate the reporting obligation. The Court found that the employees had complained in response to a more significant legal command, one imposed by the legislature to further promote strong public policy of protecting nursing home residents.
In Strozinsky v. Brown Deer School District, the Supreme Court of Wisconsin framed two issues. First, whether fundamental and well defined public policies can reside in federal tax laws. Second, whether the constructive discharge doctrine applies to a common-law claim for wrongful discharge. Cathy Strozinsky (“Strozinsky”), who was represented by Attorney Alan C. Olson, was the payroll clerk for the District. Its Superintendant verbally abused her after she made a social security tax withholding from his bonus pay. She explained that he appeared hostile, threatening, and verbally abusive. She became physically sick after the confrontation with the Superintendant. Thereafter, Strozinsky’s work responsibilities diminished and management ceased communicating with her. Strozinsky contacted the IRS to confirm that the shortcomings in the tax withholdings did not comply with federal law and that she personally could be held liable for breaking tax laws. Strozinsky resigned approximately seven weeks after the employer’s harassment began.
The Strozinsky court held that taken together, the cumulative effect of these circumstances present a factual question for the jury to determine whether Strozinsky’s resignation was voluntary or whether it constituted a constructive discharge.
The Strozinsky court also held that substantial public policy interests can reside in certain federal statutory provisions. The Strozinsky court reasoned that, “[t]he effect on the employee of having to choose between keeping hi s [or her] job or following the law…is the same regardless of the origin of the law.”
Application of the Constructive Discharge Doctrine
The doctrine of constructive discharge recognizes that in an attempt to avoid liability, an employer may refrain from expressly firing an employee, preferring instead to engage in conduct causing him or her to quit. Such employer-attempted “end runs” around wrongful discharge are prevented by application of the doctrine of constructive discharge. The doctrine operates “to discard form for substance, to reject sham for reality” and recognizes that resignations created by certain intolerable working conditions are, in fact, actual firings.
To raise the constructive discharge defense, the employee must establish conditions so intolerable that he or she felt compelled to resign. The question hinges on whether a reasonable person in the position of the plaintiff would feel forced to quit. Inferior work assignments, transfers to less favorable job duties, and substandard performance reviews alone generally do not create intolerable conditions. Rather, the situation must be unusually aggravating and surpass single, trivial, or isolated incidents of misconduct.
The Strozinsky holding recognizes that employers cannot escape liability by coercing a resignation instead of formally uttering the words “you’re fired.”
If you have been fired for refusing to violate public policy, please contact us.