You recently hired a nurse with outstanding credentials and an impeccable resume.  You've learned, however, that this nurse isn't a team player. You strongly believe in a team-based approach to patient care. Consequently, you believe that it's in the best interest of the hospital to terminate this employee and hire another applicant. There's no collective bargaining agreement with any nursing union, and the employee policies and procedures manual states that your hospital is an equal employment opportunity (EEO), and is otherwise silent as to the grounds for employee termination. Can you legally terminate this nurse despite her outstanding resume and references without fear of her suing the hospital for wrongful discharge?

     The answer is most likely yes, as long as there's no employment contract stating otherwise, and as long as the nurse isn't terminated for a discriminatory or illegal purpose. 

      The act of wrongful discharge is somewhat of a legal misnomer. Generally, the law deems most employer/employee relationships as terminable at-will: either the employer or the employee may terminate the employment relationship at any time for any reason unless there's a contract that states otherwise. 

      Modern federal and state statutes have significantly limited the at-will doctrine.  Federal and state laws have carved out specific exceptions, making some reasons for terminating an employee impermissible. Although the federal laws apply to virtually every employer engaged in interstate commerce employing a specific number of employees, state laws vary. Therefore, employers should use this information only as a general overview of employment law, and should consult with attorneys in their jurisdiction for specific legal advice.

Policy Manuals

     Because the employment relationship is deemed to be at-will when the parties don't have an employment contract to the contrary, a threshold issue is whether the employee was at-will, or whether the employer unknowingly entered into a contract with the employee. Terminated employees often argue that the employee's handbook or policies and procedures manual constitutes an implied contract. Therefore, if the employer didn't follow disciplinary procedures as stated in the handbook or policies and procedures manual, the employee was wrongfully discharged. 

     The law recognizes express agreements, which are contracts where the parties spell out the terms in writing, and implied agreements, where the actions of the parties themselves indicate an agreement. If an employer isn't careful, its employee handbook could be construed as an implied contract. Termination procedures manual may be considered contractual when a reasonable employee construes the procedures as being binding on the employer, and the procedures are sufficiently definite to allow a court to understand and enforce them.1  On the other hand, termination procedures set forth in an employee handbook won't create an implied contract where a clear disclaimer of any contractual right appears. Such a disclaimer must clearly and conspicuously disclaim the intent to enter a contract limiting the right to discharge employees.

Federal Law

     Federal and state statutes have also altered the application of the at-will doctrine, making some reasons for discharge impermissible. Title VII of the Civil Rights Act of1964 makes it unlawful to discharge any individual based on race, color, religion, sex,or national origin.2 Thus, discharging an employee solely on these reasons constitutes a wrongful discharge under federal law.

     To Prevail under Title VII, a plaintiff must prove membership in a protected class (race, color, religion, sex, or national origin), and that he suffered an adverse action, was qualified for the position, and was replaced by someone outside the protected class or treated differently from similarly situated members.3 Once the plaintiff makes this showing, the employer then must articulate a legitimate nondiscriminatory reason for the plaintiff's discharge. If the employer meets this burden, the plaintiff must prove the employer's stated reason was pretextual.4

     Employers should also be aware of the federal Americans with Disabilities Act (ADA).  ADA prohibits discrimination against a qualified individual with a disability because of the disability of such individual in regard to discharge of employees.5 To prevail under the ADA, a litigant must prove that he is disabled, is able to perform the essential functions of the job with or without reasonable accommodation, and has suffered an adverse employment decision because of his disability.6

     Moreover, federal law prohibits adverse employment actions solely on the basis of an individual's age. The Age Discrimination in Employment Act (ADEA) makes it unlawfulfor an employer to discharge any individual because of such individual's age.7

      Finally, discharging an employee for exercising his rights under the Family and Medical Leave Act (FMLA) may result in a wrongful discharge claim. The FMLA grants covered employees up to 12 weeks of unpaid leave in certain circumstances.8 It's illegal for any employer to interfere with, restrain, or deny the exercise of FMLA rights.9

State Law

     Many states have enacted whistleblower statutes or recognize some form of public policy exception to the at-will doctrine to protect employees from discharge for reporting wrongful activity. A typical whistleblower statute prohibits retaliation against an employee because he opposes, objects to, or refuses to participate in or remains silent about certain wrongful behavior.10

     Closely related to the whistleblower idea is the public policy exception to the at-will doctrine. In public policy cases, an employee is generally discharged after exercising a certain right or making a disclosure consistent with a legal duty, and the court is of the opinion that public policy should deem discharging the employee for exercising that right impermissible. This is often the argument of last resort for aggrieved employees, especially where the employee's claimed right isn't defined by statute.  Courts will rarely deem a discharge impermissible unless the employee was exercising a clearly defined statutory right. Therefore, many states ostensibly require that the public policy alleged to be violated be evidenced by a state constitutional or statutory provision.11

Stay Apprised

     Managers should be cautious in terminating any individual where there's a possibility that the terminated employee could come back and allege he was terminated for an impermissible purpose. Documenting employee reprimands, misconduct, habitual lateness, and so forth may provide some evidence of a legitimate and nondiscriminatory reason for the employee's termination, should litigation ensue. Employers are well advised to continue to keep apprised of the legislative and judicially created exceptions to the at-will employment doctrine to save potential litigation expenses down the road.

References

1. Jaynes v. Centura Health Corp., 448 P.3d 247.

2. 42 U.S.C. sec. 2000-e-2 (a) (1).

3. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, (1973).

4. Warfield v. Lebanon Correctional Institution, 181 F.3d 723, 729 (6th Cir. 1999)

5. 42 U.S.C. sec. 12112(a).

6. Mortensen v. Pacificorp, 2007 WL 40583 (D.Or.2007)

7. 29 U.S.C. sec. 623 (a) (1).

8. 29 U.S.C. sec. 2612 (a) (1).

9. 29 U.S.C. sec. 2615

10. Tennessee Whistleblower statute, Tenn. Code Ann. sec. 50-1-304.

11. Goggins v. Rogers Memorial Hospital, Inc. 683 N.W.2nd 510,514 (2004 Wis.App. 113)

This article adapted from Moushon MA, Asher GE, preventing wrongful discharge. Know your facts. OR Nurse, January 2008 19-20.