Employment Law

“Wrongful termination” is a catch-all term, and as discussed in a recent post an imperfect one.  In essence, wrongful termination occurs when a firing violates public policy or a statute in some way that creates at least a possible damage remedy for the fired worker.

Maryland law has a catch-all category of firings in defiance of Maryland public policy that give rise to claims for damages for wrongful termination/abusive discharge, under Adler v. American Standard and cases relying on Adler.  I prefer to refer to these claims as “Adler claims” to avoid confusion.

Many other statute prohibit retaliation – termination or sometimes retaliation short of termination – against workers who exercise a right or object to an illegal practice.  In some of those cases, the Adler doctrine might not apply because it is superfluous; the statute may trump the “common law” Adler claim.  Sometimes Adler can provide a remedy against a firing that is illegal under a statute, but for which no remedy can be obtained otherwise; an example might be a discriminatory firing that lies outside the power of the EEOC or the Maryland Office of Civil Rights due to the small size of the employer.  Firings on the basis of race are illegal, even if the employer is too small to fall within the 15-employee minimum for a statutory civil remedy.

Examples of employment statutes that have anti-retaliation provisions are the Maryland and federal age and hour laws, the Workers Compensation Law, the Title VII of the 1964 Civil Rights Act (even for workers who haven’t themselves claimed or suffered discrimination) and many others.  Workers who get fired for objecting to illegal practices or for exercising a right protected in a clearly articulated way may have a statutory remedy and/or an Adler remedy.

In practice, what are examples of potentially good wrongful termination cases?  Here are a few examples of cases that MIGHT have merit.

Worker fired for reporting illegal activity to the government or, sometimes, threatening to do so or reporting it within the company.

Worker fired for refusing to participate in a crime, such as some forms of commercial fraud, tax fraud, mail fraud or wire fraud, etc.

Worker fired for objecting to violations of the minimum wage laws, the overtime laws, to some extent the wage payment and collection laws.

Worker who may not necessarily have suffered sexual harassment or discrimination, but fired for complaining within the employing unit or outside of it of discrimination or harassment.

Worker fired for reporting a safety concern for workers or consumers.

Worker fired for refusing unlawfully to discriminate or for urging others to cease discriminatory practices.

Worker fired for inquiring about disability or family medical leave accommodations, regardless of whether the worker was disabled/entitled to family medical leave.

Worker fired for refusing to provide Facebook information – his/her own or a coworker’s – to an employer in defiance of Maryland’s law prohibiting such data collection.

Worker fired for discussing conditions of work or of pay with co-workers in suspect violation of the National Labor Relations Act (see this post for additional information.)

I am NOT stating that these cases are or would be successful, only that they are examples of potentially viable wrongful termination claims that merit additional technical review.

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.