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On January 19, 2011, a three judge panel of the Superior Court of Pennsylvania recognized another exception to the at-will employment doctrine. In Haun v. Community Health Systems (pdf), the court affirmed the trial court's order, which recognized a new exception to the at will rule, and refused to dismiss the wrongful termination claim of a former hospital employee. 

The at will employment rule basically provides that, absent an employment contract that provides otherwise, either the employee or the employer may terminate the employment relationship at any time and for any reason. However, over the years, the courts have created numerous exceptions to the rule that have greatly limited the ability of employers to terminate employees.

Haun, the former Chief Financial Officer of the hospital, filed suit against the hospital and other defendants after he was fired for bringing a medical malpractice claim against the hospital. Haun and his wife brought the malpractice claim on behalf of their newborn son who was seriously injured while in the hospital's neonatal intensive care unit.

The Superior Court adopted wholesale the trial court's decision regarding the wrongful termination claim without analysis. The trial court stated that there had been no prior determination that there is an exception to the at will employment rule that would bar termination of an employee who is suing an employer to protect the rights of his or her child. Nonetheless, the trial court went on to state that public policy supports allowing victims to receive compensation for medical malpractice, and supports parents asserting legal claims on behalf of their children. Therefore, the court found that Haun's claims met the public policy exception to the at will rule, and the claims were not dismissed.

There was some good news for employers. While the Superior Court recognized a new public policy exception to the at will employment rule, the court rejected Haun's tortious interference with contractual relations claim, which was brought against the hospital's corporate parents. The court held that an at will employee cannot sue a third party for tortious interference with a currently existing at will employment relationship.

The recognition of another exception to the at will rule adds to the growing list of such exceptions. As recently as January 17, 2011, we reported that a federal court, the District Court for the Western District of Pennsylvania, had recognized another new exception to the at will rule. Employers faced with the need to discharge an employee must be aware of the growing list of exceptions to the at will rule to ensure that the discharge will withstand challenge. 
 

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On November 11, 2010, we reported that the Hartford, CT Regional Office of the National Labor Relations Board (NLRB) issued a Complaint alleging that an employer illegally terminated an employee who mocked her supervisor on her personal Facebook page. Our post can be viewed by clicking here.

On February 7, 2011, the NLRB announced that it had settled the Complaint with the employer. Importantly, under the settlement, the employer agreed to revise its Internet posting policy, which the NLRB had alleged was overly broad and improperly restricted employees from discussing their wages, hours and working conditions with co-workers and others while not at work.

While this settlement was reached at the "Complaint" stage and did not established NLRB precedent, the Complaint itself is clearly an indication of how the NLRB views employees' use of social media. Therefore, all employers, both unionized and non-union, should review and consider revising their electronic resources and Internet postings policies to ensure that those policies would not be viewed as overly broad or overly restrictive if challenged. 

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This post was contributed by Anthony D. Dick, Esq., an Associate and a member of McNees Wallace & Nurick LLC's Labor and Employment Practice Group in Columbus, Ohio.

The number of retaliation-based charges of discrimination filed with the Equal Employment Opportunity Commission (the “EEOC") has doubled from approximately 18,000 to 36,000 in the last ten years.  Last week, the United States Supreme Court issued a decision that surely will cause this trend to continue.  In a unanimous decision, the Court held in Thompson v. North American Stainless (pdf) that an employee who claimed he was terminated because his fiancée engaged in protected activity, could bring a retaliation claim against their mutual employer under Title VII of the Civil Rights Act of 1964 ("Title VII").

Plaintiff Eric Thompson met and eventually became engaged to Miriam Regalado while both worked for North American Stainless (“NAS”).  Subsequently, Regalado filed a charge of discrimination with the EEOC, claiming NAS discriminated against her because of her sex. Approximately three weeks later, NAS fired Thompson.  Thompson filed suit, alleging his termination was in retaliation for his fiancée’s protected activity.

Both the U.S. District Court for the Eastern District of Kentucky and the Sixth Circuit Court of Appeals ruled that Thompson did not have standing to sue for retaliation under Title VII because he had not engaged in any protected activity under the law.  The Sixth Circuit reasoned that the plain language of Title VII did not contemplate third-party retaliation claims.  The statute specifically provides that:  “It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.” 

In an opinion written by Justice Scalia, the Supreme Court determined that NAS’s alleged conduct was prohibited by Title VII.  The Court ruled that the anti-retaliation provision of Title VII must be construed broadly to prohibit any employer action that would “have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  Applying this rule, the Court found that a reasonable employee certainly would be dissuaded from engaging in protected activity if she knew that the consequence would be her fiancé’s termination from the company.

NAS argued unsuccessfully that this standard will force employers into an unenviable position of having to try to identify whether an employee who is about to be terminated has a close relationship with someone who recently engaged in protected activity before taking an adverse action that could expose it to a third-party retaliation claim.  In rejecting this argument, the Court noted that, "[a]lthough we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII." 

The Court refused to articulate a bright-line rule concerning how close a relationship must be to afford third-party retaliation protection, stating in pertinent part, “[w]e expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.”

In analyzing Thompson’s standing to sue under Title VII, the Supreme Court went on to find that the term “person aggrieved” under the statute includes a plaintiff who falls within the "zone of interests" sought to be protected by Title VII.  Thus, if Title VII “arguably sought” to protect that person’s rights, he or she has standing under Title VII; however, if the individual has interests that are only “marginally related to or inconsistent” with the purposes of law, no standing to sue exists.

According to the Supreme Court, Thompson had standing to pursue his own retaliation claim against NAS because he fell within the amorphous “zone of interests” contemplated by Title VII.

It should be clear that this case expands the bounds of employers’ potential liability under Title VII.  Now, more than ever, employers should use caution when taking adverse action against an employee whose spouse, family member, domestic partner or fiancé(e) recently engaged in protected activity.  And, as always, employers should document the specific reasons for employee terminations and follow established company policies to limit later arguments by a terminated employee that he or she was terminated because of a retaliatory motive on the part of the employer.

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