WHEN CAN AN EMPLOYEE SUE HIS EMPLOYER FOR WRONGFUL DISCHARGE?

Date: September 24, 2015
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In Pennsylvania the long standing policy is that an employer can terminate an employee at any time, for any reason or for no reason whatsoever. Henry vs. Pittsburgh and Lake Erie Railroad, 139 Pa. 289 1891. This doctrine is still the law in Pennsylvania although over time exceptions have been carved out.

The Pennsylvania Supreme Court in 1994 allowed employees to challenge job terminations if there was an allegation of a “wrongful discharge.” The Courts recognized that if the employer violated a clear mandated public policy of the Commonwealth of Pennsylvania then a cause of action would exist.

In the matter of McLaughlin vs. Gastrointestinal Specialists, Inc. the Pennsylvania Supreme Court set down the guidelines for a wrongful discharge claim. The Court explained that public policy, for purposes of asserting a wrongful discharge claim, must arise either from the Pennsylvania Constitution or Statutes promulgated by the Pennsylvania Legislature. The McLaughlin Court further specified that public policy, interestingly enough, cannot be based upon Federal laws of policies.

The following cases illustrate where our Courts have allowed wrongful discharge claims to proceed based upon an alleged violation of the Pennsylvania public policy.

In the case of Perry vs. Tioga County the Court disallowed the Claim where the Plaintiff/Employee asserted that he was wrongfully terminated by his former employer because he had reported illegal conduct by his employer. The Court held that the Plaintiff had failed to implicate a public policy of the Commonwealth. The Court noted “In Pennsylvania the public policy exception to employment at will recognizes a cause for wrongful discharge if the employee has been retaliated against conduct actually required by law or refusing to participate in conduct actually prohibited by law. Perry 649 A.2nd 189. It became obvious that if Mr. Perry had alleged in his complaint that the employer discharged him for refusing to engage in illegal activity, his claim for wrongful discharge would have been allowed to go to the jury.

The Courts clear directive was demonstrated in the case of Brown vs. Hamon where a paralegal bought a wrongful discharge claim stating that she was discharged because she refused to perform fraudulent billing as directed by her supervising attorney. 810 Fed. Supp. 644 (E.D. PA 1993). The Court allowed the claim to proceed finding that the Pennsylvania of Professional Conduct, as adopted by the Pennsylvania Supreme Court, could provide the basis for a public policy exception to the employment at will doctrine.

The Court distinguished between an employee’s reporting of illegal work place conduct, or whistle blowing which would not give rise to a wrongful discharge cause of action, from an employee’s refusal to engage in her employment’s unlawful activities which did in fact satisfy the necessary requirements for a wrongful discharge claim.

In the case of Reuther vs. Fowler & Williams, 386 A.2nd 119 (1978) the Court recognized a cause of action for damages when the employer terminated his employee for missing work because that employee served on jury duty. The Court acknowledged that the employee’s claim was predicated upon public policy articulated in Pennsylvania Constitution, namely the right to a trial by jury. The Court recognized the necessity of having citizens freely available for jury service.

In a more recent case of Shick vs. Shriey our Supreme Court held that an at will employee who allegedly was fired for filing a Workers’ Compensation Claim had successfully asserted a cause of action for wrongful discharge. Shick vs. Shriey, 716 A.2nd 1231. The Court recognized the duty of employers to compensate employees for work related injuries under the Workers’ Compensation Act. It was the Courts expressed articulation for said policy to be effectuated that an employee must be able to exercise his or her rights in an unfettered fashion without being subject to reprisal. If an employer was permitted to penalize employees for filing Workers’ Compensation claims, a most important public policy would have been undermined.

The bottom line is that attorneys who seek to pursue wrongful termination claims on behalf of employees must be aware that they in their pleadings should clearly identify the implicated public policy of the Commonwealth of Pennsylvania in order to successfully survive a summary judgment.

 

Cal Leventhal
Cal is a graduate of the University of Miami (magna Cum Laude) and attended Loyola and Notre Dame law schools graduating in 1976. He is admitted to the Bars of the Supreme Court of Pennsylvania and both state and federal trial and appellate courts situated in Pennsylvania.