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“But I didn’t steal from the cash register – isn’t that wrongful termination?”

A very common consultation in my office goes something like this.

Earnest Client: They accused me of stealing from the register, but I didn’t do anything such thing.
Godfrey: Gotcha.
Earnest Client: Someone else on my shift must have done it, it was a busy night and we were selling a lot of pizza and beer.  They cannot fire me for this; they didn’t even investigate the case or give me my due process.
Godfrey:  It stinks and sounds unfair.
Earnest Client: So how much can we get if we sue?
Godfrey: We won’t, as I see no case here.  Another attorney may disagree with me but I decline the case.  I do hope you file for unemployment immediately and that you keep filing; I might be able to help you on that if they show resistance to your unemployment benefits application.  If you want a second opinion, I encourage you to get one.

There are a couple points to consider.

“Wrongful termination” or “abusive discharge” are perhaps poor terms for the tort of firing someone in contravention of public policy.  “Wrongful” and “abusive” have commonplace meanings outside of law and within the law outside of this employment tort.   “Wrongful” here means, approximately, “in defiance of Maryland public policy” under Adler v. American Standard and the cases in Maryland that followed it.  English doesn’t have a convenient word for “defies the government” or “undercuts the law”; the closest words might be something like “rebellious” or “antisocial” or “counter-civic” but those words are clumsy or have other misleading connotations of their own.

There are some limited circumstances where workers are entitled to good faith and fair dealing from management, such as in the context of certain mediations and arbitrations before the National Labor Relations Board.  I do not practice before the NLRB but in labor negotiations of certain types, the NLRB can require that participants act in good faith, i.e. not claim false motives or pretexts for what they are doing or positions that they are taking.  If management, for example, claims that it cannot offer a raise to a bargaining unit because revenues are down, the unit may be able to demand that management produce financial records to prove that revenues are down.  Management can state that it won’t offer a raise because it doesn’t feel like doing so; that’s hardball and perhaps unhelpful, but arguably a good faith statement of its intentions.

Maryland’s long-standing doctrine of “at-will employment”, in contrast, does not require that workers or management engage in good faith or even reasonable diligence regarding the positions that they take.  If management concludes that a worker stole money from the cash register, it may fire the worker – even in defiance of a video tape showing another worker dumping a register tray into a trash bag while the fired worker was in the hospital on medical leave.  Workers in Maryland are not entitled in the boss’s office to due process, a neutral arbiter, the opportunity to present documents and tangible evidence, the opportunity to examine management’s evidence, or any sort of procedural or fundamental fairness except for contractual protections, the anti-discrimination laws and the protection against firings in defiance of Maryland public policy.

Accordingly, a worker fired for alleged theft has no case for wrongful termination merely because management’s belief is poorly grounded or groundless.  If management formed a belief that a particular worker stole money, and formed that belief primarily on the basis of provable discriminatory stereotypes in defiance of anti-discrimination laws, there might be a viable discrimination case for damage done to the worker done in response to that belief.  If a contract provides for due process, a fair hearing, etc., that contract (individual or collective) might be enforceable under principles of contract law to require those procedures or damages for their neglect.  But there is no broad-based right for Maryland workers to “rightful” process or treatment in general from an employer.

None of the foregoing is a substitute for legal advice (i.e. what someone should do, not how the law works) from an actual attorney to an actual client.  If you need an attorney, consult one; that’s the only advice offered here.

2 Comments

  1. Charlie Commeree

    Bruce, would your ears perk up if this person calls back and says, “I applied for job X and they contacted this old employer who told them that they fired me for stealing”?

  2. Bruce Godfrey

    My ears would perk up but not too high. It is not an employment tort as such to accuse someone falsely of a crime. Maryland does provide a statutory privilege for good faith job references, but this would not be good faith. It would not be an Adler claim as the defamation would have post-dated the firing. But I’d be interested, especially if the new job were for a lot of money and the applicant were otherwise qualified.

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