Kentucky Employment Law Blog

Wrongful Discharge: Being Fired for Refusing to Violate the Law

Kentucky recognizes a claim for wrongful discharge, and one way it arises is when an employee is fired for refusing to violate a law in the course of his or her employment. Here's two examples:

• Hill v. Ky. Lottery Corp., 327 S.W.3d 412 (Ky. 2010)(refusal to commit perjury in legal proceeding)
• Follett v. Gateway Regional Health System, Inc., 229 S.W.3d 925 (Ky. App. 2007) (refusal to condone irregular medical billing and a doctor working under the influence of alcohol)

A number of other states recognize the same, here are some more examples:

• Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 710 P.2d 1025, 1035 (Ariz. 1985) (“the termination for refusal to commit an act which might violate A.R.S. § 13-1402 [indecent exposure] may provide the basis of a claim for wrongful discharge.”)
• Webb v. HCA Health Serv., 780 S.W.2d 571 (Ark. 1989) (protecting refusal to falsify medical records required by Medicaid and Medicare)
• Tameny v. Atlantic Richfield Co., 610 P.2d 1330, 27 Cal.3d 167 (Cal. 1980) (wrongful firing of employee for refusing to participate in illegal price-fixing scheme)
• Collier v. Superior Court of Los Angeles County, 228 Cal. App. 3d 1117 (Cal. App. 4^th Dist.
  1991) (allowing wrongful termination claim to protect refusal to engage in bribery, kickbacks, tax evasion, drug trafficking and money laundering as the claim serves the public interests and protects innocent persons)
• Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 109 (Colo. 1992) (en banc)(refusing to violate federal statute by providing NASA with false information regarding product quality and pricing)
• Bonidy v. Vail Valley Ctr. for Aesthetic Dentistry, P.E., 186 P.3d 80, 83 (Colo. Ct. App. 2008), cert. denied, 2008 WL 2486232 (Colo. 2008) (protecting an employee who “objects
  to performing a[] [wrongful] act” and “is immediately fired before having an opportunity to refuse to perform the directed act”)
• Faulkner v. UnitedTechnologies Corp., 240 Conn. 576, 693 A.2d 293 (Conn. 1997) (refusing to defraud U.S. Army by using defective helicopter parts in violation of 18 U.S.C. § 1031)
• Adams v. George W. Cochran & Co., Inc., 597 A.2d 28, 33 (D.C. 1991) (refusing to drive truck that lacked required inspection sticker)
• Norris v. Hawaiian Airlines, Inc., 842 P.2d 634 (Haw. 1992) (refusing to falsify airline maintenance records in violation of FAA regulations), aff’d sub nom. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246 (1994)
• McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390 (Ind. 1988) (refusing to drive truck over legal weight limit)
• Borschel v. City of Perry, 512 N.W.2d 565, 567 (Iowa 1994) (referring to refusal “to commit an unlawful act” as one basis for wrongful discharge claim)
• Fitzgerald v. Salsbury Chem., Inc., 613 N.W.2d 275, 280 (Iowa 2000) (refusal to commit perjury protected)
• Kessler v. Equity Management, Inc., 82 Md.App. 577, 572 A.2d 1144 (1990) (refusal to commit trespass and invasion of privacy)
• DeRose v. Putnam Mgmt. Co., 496 N.E.2d 428 (Mass. 1986)(refusing to testify falsely at criminal trial)
• Trombetta v. Detroit, T.&I.R.R., 265 N.W.2d 385 (Mich. Ct. App. 1978) (refusing to falsify
  pollution control records in violation of state law)
• Drake v. Advance Construction Service, Inc., 117 F.3d 203 (5th Cir. 1997) (applying Mississippi law) (protecting a refusal to submit false quality-control reports to U.S. Army Corps of Engineers), following McArn v. Allied Bruce–Terminix Co., Inc., 626 So.2d 603, 607 (Miss. 1993)
• Fleshner v. Pepose Vision Institute, 304 S.W.3d 81 (Mo. 2010) (employee may not be terminated for refusing to violate the law or any well-established and clear mandate of public
  policy, or for reporting wrongdoing or violations of law to superiors or public authorities)
• Schriner v. Meginnis Ford Co., 421 N.W.2d 755 (Neb. 1988) (refusal to commit odometer fraud)
• Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 961 A.2d 1167 (2008) (actual or threatened complaint to outside agency was not required to support common law cause of action for retaliatory discharge; attorney protected for refusing to engage in conflict of interest)
• Coman v. Thomas Manufacturing Co., Inc., 381 S.E.2d 445 (N.C. 1989) (refusing to violate federal regulations by driving truck excessive hours and falsifying records)
• Sabo v. Schott, 1994 Ohio 249, 70 Ohio St. 3d. 527, 639 N.E.2d 783 (refusal to commit perjury)
• Todd v. Frank’s Tong Service, Inc., 1989 Ok. 121, ¶ 12, 784 P.2d 47 (refusing to drive truck with defective brakes, headlights, and turn signals, in violation of state law)
• Delaney v. Taco Time Int’l, Inc., 297 Or. 10, 681 P.2d 114 (1984) (refusal to sign a false and defamatory statement)
• Anderson v. Evergreen International Airlines, Inc., 131 Or. App. 726, 886 P.2d 1068
  (1994), rev. denied, 320 Or. 749 (1995) (refusing to use defective parts in defendant’s aircraft, and refusing to cover up safety violations)
• Woodson v. AMF Leisureland Centers, Inc., 842 F.2d 699 (3d Cir. 1988) (applying
  Pennsylvania law) (discharging bartender for refusing to serve visibly intoxicated patron, in violation of state liquor code)
• Strange v. Nationwide Mutual Ins. Co., 867 F. Supp. 1209, 1218-19 (E.D. Pa. 1994)
  (applying Pennsylvania law; protecting a refusal to engage in illegal “redlining”)
• Dugan v. Bell Telephone of Pennsylvania, 876 F. Supp. 713, 725-26 (W.D. Penn. 1994) (applying Pennsylvania law; protecting a refusal to participate in destruction of records subpoenaed by state legislature)
• Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822 (Tenn. 1994) (refusing to violate laws requiring trucks be inspected for safety violations before driving)
• Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 437 (Tenn. 2011) (protecting a refusal to engage in age discrimination in housing)
• Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985) (protecting a refusal to dump ship’s bilges into public waterway, an illegal act)
• Nguyen v. Technical and Scientific Application, Inc., 981 S.W.2d 900 (Tex. Ct. App. 1998) (refusing to violate federal criminal copyright laws)
• Peterson v. Browning, 832 P.2d 1280 (Utah 1992) (refusing to falsify tax and customs documents)
• Hubbard v. Spokane County, 146 Wash.2d 699, 707, 50 P.3d 602, 611 (2002) (en banc) (director of planning department fired for seeking assistance of county prosecutor to prevent issuance of permit to build new hotel in violation of zoning code and airport master plan)
• Collins v. Elkay Mining Co., 371 S.E.2d 46 (W. Va. 1988) (refusing to falsify mine safety reports and refusing to violate mine safety laws)
• Kempfer v. Automated Finishing, Inc., 564 N.W.2d 692 (Wis. 1997) (refusing to drive
  delivery truck without proper licensing)

These cases were collected in a brief filed by NELA member Richard Renner in a brief he filed with the Nevada Supreme Court in his case, Reuber v. Reno Dodge, No. 61602

Robert L. Abell
www.RobertAbellLaw.com

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The Supreme Court ruled in Coleman v. Maryland Court of Appeals, 132 SCt 1327 (2012), that sovereign immunity under the Eleventh Amendment barred a suit against a state for money damages under the Family Medical Leave Act (FMLA). The Sixth Circuit considered recently in Diaz v. Michigan Dept. of Corrections, No. 11-1075 (January 7, 2013), whether a state's sovereign immunity under the Eleventh Amendment likewise barred a claim under the FMLA for the equitable remedy of reinstatement to employment.

The Sixth Circuit found this an easy question and ruled that a state's sovereign immunity under the Eleventh Amendment does not bar a claim under the FMLA for an equitable remedy of reinstatement.

Robert L. Abell
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Free Speech Rights of Policy-Making Public Employees

Do public employees in policy-making positions have different and lesser free speech rights than other public employees? They do and the point was further shown in the Sixth Circuit's recent decision in Dixon v. University of Toledo, No 12-3218 (December 17, 2012).  

Crystal Dixon, an African-American woman, was the Associate Vice-President for Human Resources at the University of Toledo.  Her responsibilities in that position included developing and implementing human resources policies, overseeing employee benefits, handling employee grievances, and promoting the university's diversity plan that specifically included sexual orientation within its equal opportunity and anti-harassment policies among other duties.  

In response to an editorial column in the local paper, the Toledo Blade, that compared the gay rights movement with the civil rights movement, Dixon wrote and submitted a response titled "Gay Rights and Wrongs: Another Perspective," in which she rejected the comparison. Dixon did not identify her position with the university in her column.  Dixon was terminated two weeks later. She filed suit claiming, among other things, that she was fired in retaliation for her exercise of First Amendment free speech rights. The district court granted the defendants summary judgment.

On appeal, the Sixth Circuit framed the question narrowly: "whether the speech of a high-level Human Resources official who writes publicly against the very policies that her government employer charges her with creating, promoting, and enforcing is protected."  The Sixth Circuit concluded that Dixon's was a policy-making position, that the presumption arising from its decision in Rose v. Stephens, 291 F3d 917 (6th Cir 2002), applied and held that Dixon's speech was not protected by the First Amendment.

The Sixth Circuit's opinion was written by Judge Karen Nelson Moore joined by Judges Ronald Gilman and Raymond Kethledge.

Robert L. Abell
www.RobertAbellLaw.com 

 

 

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Employees of federal government contractors stand to gain much increased whistleblower protection from the National Defense Authorization Act of 2013, which has passed Congress and President Obama is expected to sign.

A complaint must first be filed with the relevant Office of Inspector General (OIG) and if relief is not timely provided within 210 days, the employee may file suit in federal district court with the following provisions applicable:

• a proof burden requiring only a showing the the protected disclosure was a contributing factor in the personnel action, which can be met by shoing knowledge and temporal proximity. This is the standard under 5 U.S.C. sec. 1221(e)
   
• possible remedies that include reinstatement, back pay, compensatory damages (which are not capped) and attorney fees and costs
   
• protected whistleblower disclosures that include reports to a Member of Congress, a Congressional committee, an Inspector General, the Government Accounting Office (GAO), a Department of Defense of NASA employee responsible for contract oversight, an authorized official of the Department of Justice, a court, a grand jury or an employee of  the contractor that has authority and/or responsibility to assure that any misconduct, fraud or abuse is remedied  enforcement agency, a court or grand jury or a management official or other employee of the contractor or subcontractor who has the responsibility to investigate, discover, or address contract mismanagement, violation of law, etc.
   
• the rights and protections may not be waived (although one wonders whether this includes arbitration agreements)
   
• there is a three year limitiation period
  
  
• the protections will become effective one (1) year after President Obama signs the law, which has not yet occurred but is expected to.

Robert L. Abell
www.RobertAbellLaw.com