Wrongful Discharge and Wrongful Termination are commonly used to describe any termination that an individual feels is unjust or unfair; however, in the legal world, wrongful termination is actually a very particular cause of action under Wisconsin state law that comes into play if an individual is terminated for refusing to violate the law.
What is Wrongful Discharge or Wrongful Termination?
Since the late nineteenth century, Wisconsin has been an “at-will” state. Under the at-will employment doctrine, an employer can terminate an employment relationship (aka fire an employee) for good cause or no cause. The at-will employment doctrine also means that employees are free to end the employment relationship (aka quit), whenever they so choose and for whatever reason they so choose.
There are multiple exceptions to the employment at-will doctrine. For instance, an employer cannot terminate an employee for any reason that is discriminatory or retaliatory. Doing so could potentially violate Title VII of the Civil Rights Act of 1964, as amended, the Wisconsin Fair Employment Act (WFEA), Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA), or Age Discrimination in Employment Act (ADEA), just to name a few.
In 1983, the Wisconsin Supreme Court expanded employee protection by recognizing an action for wrongful discharge as a public policy exception to employment at-will. Since that time, the boundaries of wrongful discharge have been both expanded and restricted, in an attempt to put a firm definition on the purpose of wrongful discharge: creating an exception to the at-will employment doctrine for terminations that violate public policy. However, what has remained true since 1983 is that an employee is wrongfully discharged or wrongfully terminated if the employee is terminated for refusing to violate a constitutional or statutory provision or for reporting unlawful conduct in the workplace.
Elements of Wrongful Discharge or Wrongful Termination
To prove a claim of Wrongful Discharge or Wrongful Termination, an individual must:
- Identify a fundamental and well defined constitutional, statutory, or administrative provision
- Demonstrate that the public policy provision identified was violated by the termination. The public policy of a statute does not necessarily come from the plain or literal language of a statute, but rather can also come from the “spirit” of a statute
Examples of previous wrongful discharge cases include a nurse who refused to work in an area of the hospital for which she was not qualified, a credit union clerk who refused to reimburse her employer for its losses resulting from a customer’s bad check, a truck driver who refused his employer’s command to operate his truck without a valid drivers’ license, and a payroll clerk who refused to violate tax withholding regulations.
If the employee is able to prove that his or her termination violated public policy, the burden shifts to the employer to show just cause for its decision to terminate the employee.
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