Pennsylvania Labor and Employment Blog : Pennsylvania Labor and Employment Lawyer & Attorney : McNees Wallace & Nurick Law Firm : Human Resources, Workplace and Business Law : Harrisburg, Lancaster, Allentown, Lehigh

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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Pennsylvania has long been considered an "employment at will" state – meaning that employers and employees may terminate their employment relationship at any time with or without cause or prior notice. However, the number of exceptions to the "at will doctrine" seems to grow every year. The year 2010 was no exception. In Hamovitz v. Santa Barbara Applied Research Inc., 2010 WL 4117270 (W.D. Pa. Oct. 19, 2010), the U.S. District Court for the Western District of Pennsylvania recognized a new exception to the at will doctrine involving an employer's refusal to hire an applicant based on prior service in the National Guard.

In Hamovitz, the plaintiff claimed that the employer refused to rehire him based on his service in the National Guard. In addition to filing statutory claims under the Uniform Services Employment and Reemployment Rights Act ("USERRA") and the Pennsylvania Military Affairs Act ("PMAA"), the plaintiff brought a common law wrongful discharge/failure to hire claim seeking the court to apply a "public policy" exception to the employment at will doctrine. In Pennsylvania, exceptions to the at will doctrine are rare. Under the "public policy" exception, a plaintiff may have a viable wrongful discharge claim if he can show that his termination violated a clear mandate of public policy.

In order to show that an employer's actions offended a clear mandate of public policy, the plaintiff must show that he or she was terminated for: (1) engaging in conduct required by law or (2) refusing to engage in conduct prohibited by law. In such cases, the public policy cited by the plaintiff must have legislative or constitutional endorsement, and it must be clear and specific.

In Hamovitz, the court created a new exception to the at will doctrine: "where an employer's actions impinge upon protected rights of employees." The court found that the employer in Hamovitz may have impinged upon the employee's rights under the PMAA, and therefore, the plaintiff was allowed to proceed with his wrongful discharge claim.

By allowing this claim to go forward, the court also enabled the plaintiff to avoid the statutory limitations on damages found in USERRA and the PMAA. Although not available under the PMAA or USERRA, the court found that the plaintiff in Hamovitz would be entitled to recover punitive damages if he were to prevail on his common law wrongful discharge claim.

Unless the Hamovitz decision is reversed on appeal, this new exception to the at will doctrine may trigger a wave of litigation as plaintiffs seek broad interpretations of "actions that impinge upon protected rights of employees." Courts have long held that employees sacrifice certain rights in the workplace; for example, an employer may restrict free speech by prohibiting offensive language or behavior at work. Now, however, plaintiffs may argue that a termination, or even a refusal to hire, "impinges upon protected rights" in any number of situations that previously fell under the employment at will doctrine.
 

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In Weaver v. Harpster, the Pennsylvania Supreme Court ruled that small employers (three or fewer employees) may  not liable for acts of employment discrimination. Under the Pennsylvania Human Relations Act (PHRA), employers with four or more employees are prohibited from discriminating against their employees on the basis of sex.  At common law, an employer may terminate an at-will employee for any reason unless that reason violates a clear mandate of public policy emanating from either the Pennsylvania Constitution or statutory pronouncements. In this case, the Court  addressed the intersection of the PHRA and the public policy exception to at-will employment, namely, whether an employer with fewer than four employees, although not subject to the PHRA's prohibition against sexual discrimination, nevertheless is prohibited from discriminating against an employee on the basis of sex. Because the PHRA reflects the unambiguous policy determination by the legislature that employers with fewer than four employees will not be liable for sex discrimination in Pennsylvania, the Court concluded that a common law claim for wrongful discharge, resulting from sex discrimination, will not lie against those employers.

The Court's seven justice majority continued its support for the employment at-will presumption by declining to recognize an additional public policy exception based on Pennsylvania's statutes or Constitutional protections. The  two justice dissent would have found a public policy exception to the at-will employment presumption based on both the PHRA and Pennsylvania Constitution. Small employers should keep in mind that they escape coverage of the PHRA, but may be covered by local ordinances prohibiting employment discrimination.

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