Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Sunday, February 16, 2014

Hospital Employee States Whistleblower Cause of Action

Galbraith v. Westchester Medical Center, ___A.D.3d___(2d Dep't. Jan. 15, 2014), is an interesting read. A hospital  perfusionist stated a cause of action under N.Y. Labor Law Section 741. He alleged that  alleging that he was demoted in retaliation for his objections to the rapid infuser policy, which he voiced because he was concerned that it threatened the quality of patient care. 

Note, that this is a public sector employment law case. The law is far my restrictive in the private sector in New York.

Mitchell H. Rubinstein

February 16, 2014 in Employment Law, Employment-At-Will & Exceptions | Permalink | Comments (0)

Monday, December 17, 2012

Virginia Recognized Public Policy Exception and Holds Supervisors Can Be Personally Liable

Virginia recently recognized a public policy exception to the employment at will doctrine and further held that individual supervisors or managers who participated in the decision at issue can face personal liability. Details here.

Hat Tip: Workplace Prof Blog

Mitchell H. Rubinstein

December 17, 2012 in Employment-At-Will & Exceptions | Permalink | Comments (1)

Saturday, December 8, 2012

Virginia Supremes Hold That Supervisor Can Be Personally Liable In Public Policy Exception Case

A divided Virginia Supreme Court recently held 4-3 that a state law claim of wrongful discharge in violation of public policy may be pursued against an individual supervisor or manager who participated in the wrongful firing but was not the worker's actual employer (VanBuren v. Grubb, Va., No. 120348, 11/1/12).

Writing for the majority to answer a question certified by the Fourth Circuit, Justice Millette says the purpose of Virginia's wrongful discharge tort is to deter firings in violation of public policy. That purpose “is best served if individual employees in a position of power are held personally liable for their tortious conduct.” 

By contrast, the dissent would find "[o]nly an employer can breach that duty because only an employer has the ability to hire and fire.” 

Mitchell H. Rubinstein

December 8, 2012 in Employment-At-Will & Exceptions | Permalink | Comments (0)

Sunday, November 18, 2012

Employment Contracts—Discharge—Probationary Employee


Coburn v. Regents of Univ. of Cal.,  ___F.3d____(10th Cir. 10/30/12), is an interesting decision. The 10th Circuit holds that a university employee fired three weeks after he was hired for sexual comments and racial and ethnic slurs could not advance his breach of an implied employment contract claim under New Mexico law. The court concluded that the university reserved the right to discharge probationary employees at any time.

Mitchell H. Rubinstein

November 18, 2012 in Employment-At-Will & Exceptions | Permalink | Comments (0)

Thursday, August 23, 2012

Employment At Will Remains Alive and Well In New York

Sometimes I bring a case to your attention because it does a nice job of summarizing the law, even though the case itself breaks no new ground. O'Neill v. New York University, ____Misc. 3d____(N.Y. Co. June 30, 2012), is such a case. The court dismissed a wrongful termination suit brought by a doctor at NYU. In so doing, the court did a nice job of summarizing the employment at will doctrine and its limited exceptions under New York law. The court also dismissed a defamation claim on the basis of opinion. For those interested in the employment at will doctrine in New York, it is certainly worth a read.

Mitchell H. Rubinstein

August 23, 2012 in Employment-At-Will & Exceptions | Permalink | Comments (0)

Sunday, April 15, 2012

New York Appellate Court Issues Major Employment At Will Decision and Essentially Implies Public Policy Exception

Villarin v. Rabbi Haskel Lookstein School, 2012 NY Slip Op. 02786 (1st Dept. April 12, 2012), is a significant case. 

New York is one of the most conservative employment at will states. The Legislature enacted Labor Law Section 740 to protect whisleblowers, but it has been interpreted very narrowly by courts to require an ACTUAL violation of law Bordell v. GE, 88 NY 2d 869 (1996) AND illegal activity that creates a substanal and specific danger to public health. The reporting of fraud and religious harassment of an individual has been held not to be within the protection of this statute. Leibowitz v. Bank Leumi, 152 A.D. 2d 169 (2d Dep't. 1989). 

Villarin is significant because the majority holds that a school nurse at a private school is protected from being terminated because she reported child abuse. What is sigificant about this case is that the alleged abuse only concered one student. A two judge dissent felt that because the public policy did not involve a wider issue applicable to public health in general,(because only one student was involved), that this statute was not applicable.

Since two judges dissented, under New York law, this case can be appealed to the New York Court of Appeals as a matter of right. If the decision stands, like it unquestionably should, New York would essentially be recognizing a public policy exception to the employment at will doctrine at least where an actual violation of law occurred because every case would involve at least a single individual. 

Stay tunned. 


April 15, 2012 in Employment-At-Will & Exceptions, Law Review Ideas, New York Law | Permalink | Comments (0)

Tuesday, June 28, 2011

Kansas Recognizes Public Policy Exception To Employment At Will Doctrine

The Kansas Supreme Court ruled that an employee could bring a claim of common law retaliatory discharge when he or she was fired for filing a wage claim under the Kansas Wage Payment Act. Campbell v Husky Hogs, LLC, KanSCt, May 20, 2011). The court reasoned that this statute embeds with its provisions a public policy of protecting wage earners’ right to their unpaid wages.

Mitchell H. Rubinstein

June 28, 2011 in Employment Law, Employment-At-Will & Exceptions | Permalink | Comments (0)

Saturday, April 30, 2011

Employment at will

DiLacio v New York City District Council of United Brotherhood of Carpenters & Joiners of Am., 2011 NY Slip Op 00175, Appellate Division, Second Department

In this action George DiLacio, Jr. sued the District Council in an effort to recover damages for alleged wrongful termination of employment and defamation.

The Appellate Division ruled that both complaints should have been dismissed.

With respect to DiLacio allegations concerning “wrongful termination,” the court pointed out that he had served as “an employee at will.” Citing Murphy v American Home Prods. Corp., 58 NY2d 293, the Appellate Division ruled that DiLacio’s allegation that the District Council had violated their duty to terminate his employment "only in good faith and with fair dealing" failed to state a recognized cause of action under New York law.

Under New York law, "absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired."

Unless the individual has a statutory or contractual right to a pre-termination hearing he or she may be terminated at any time so long as the termination is not otherwise unlawful under State or federal law.

As to DiLacio’s defamation claim, the court said that although the termination letter containing the phrase "severe dereliction of duty," it had not been published to anyone other than DiLacio himself. 

The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

April 30, 2011 in Employment-At-Will & Exceptions | Permalink | Comments (0)

Tuesday, February 9, 2010

New York Court Again Refuses To Recognize Public Policy Exception To Employment At Will Doctrine

Candela v. Banco, __Misc. 3d___, NYLJ Dec. 29, 2009 (N.Y. Co. Nov. 19, 2009)(registration required), is an interesting case.

A former Treasurer Assistant of defendant bank, alleged that her employment was terminated by defendant and that she was asked to sign a letter that stated that the reason for her termination was her violation of bank privacy rules, insubordination, and circumvention of the bank hierarchy. Plaintiff refused to sign the letter. In a breach of contract action, plaintiff contended that defendant in its manual promised to protect her from adverse action in connection with reporting suspicious activities and that this promise gave rise to a contractual obligation to protect her from retaliatory termination. Defendant moved for dismissal of the complaint. The court granted defendant's motion, finding that plaintiff was an at-will employee and that there was no exception for firings that violate public policy such as, for example, discharge for exposing an employer's illegal activities.

Mitchell H. Rubinstein

February 9, 2010 in Employment-At-Will & Exceptions | Permalink | Comments (0)

Sunday, November 1, 2009

Employment At Will, Public Policy Exception, Smoke-Free Workplace

McNeil v. Charlevoix County, No. 134437 (Mich. Sup. Ct, July 21, 2009).

 The court upheld a local regulation prohibiting an employer from discharging, refusing to hire, or otherwise retaliating against an employee for exercising the right to a smoke-free work environment, and that also provided employees with a private cause of action, finding the law does not impinge upon  employment-at-will.  "Given the Legislature’s statutory mandates to minimize the toxic effects of smoking on human health, the authority granted in the [state code] to local health departments to prevent and control human health hazards and the facts of this particular case, we disagree with the partial concurrence and partial dissent’s view that the [public policy] exceptions to the at-will employment doctrine cannot possibly apply here."

Mitchell H. Rubinstein

November 1, 2009 in Employment-At-Will & Exceptions | Permalink | Comments (0)

Friday, October 16, 2009

8th holds Employer’s use of affirmative action plan may constitute direct evidence of unlawful discrimination under Title VII


Humphries v. Pulaski County Special Sch. Dist., __F.3d___(8th Cir. Sept. 3, 2009), is an interesting case. The 8th held that an Arkansas school district’s use of an affirmative action plan, even if it was promulgated in response to a court desegregation order, to challenge an adverse employment action under Title VII may constitute evidence of “unlawful discrimination.”

Plaintiff was employed as an elementary school counselor. Plaintiff, who is white, applied for several assistant elementary school principal positions and each time she was denied the position. She also applied for and failed to obtain a director of counseling services position. She then filed a claim with the Equal Employment Opportunity Commission (EEOC), alleging that school had repeatedly denied her an assistant principal position based on her race.

The district court granted the school summary judgment, holding that plaintiff had failed to set forth direct evidence of unlawful discrimination because she “presented no evidence that the ‘affirmative action’ plan played any part in the decisions not to promote her.” The Eighth Circuit affirmed in part and reversed in part the lower court’s decision. The panel agreed with plaintiff  that the district court had erred in finding that she had failed to present direct evidence of unlawful discrimination. It found that because the district court had made no findings regarding statistical evidence, the panel could not say as a matter of law that the district's or plaintiff's evidence was superior. It, therefore, concluded that a reasonable jury could conclude that the district had a policy of pairing assistant principals with principals of other races. In response to the contention that its affirmative action policies were promulgated pursuant to a court desegregation order, the panel, joining the Fourth, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits, concluded “that evidence that an employer followed an affirmative action plan in taking a challenged adverse employment action may constitute direct evidence of unlawful discrimination.” Citing the recent U.S. Supreme Court decision in Ricci v. Destefano, 129 S. Ct. 2658, 2673 (2009, which held “that a city’s making promotion decisions based on race would violate Title VII without a ‘valid defense,’” it stated: “If the employer defends by asserting that it acted pursuant to a valid affirmative action plan, the question then becomes whether the affirmative action plan is valid under Title VII and the Equal Protection Clause.”  Finally, the panel emphasized that in order for plaintiff's claim to survive a motion for summary judgment she must demonstrate that the affirmative action policies were invalid. Specifically, she was required to show the policies were not remedial and narrowly tailored to meet the goal of remedying the effects of past discrimination. The court found that there was a genuine question of fact regarding “whether the District’s affirmative action policies addressed a manifest racial imbalance in the workforce and, relatedly, whether the policies were aimed at attaining a balance in the workforce.” As a result, the panel held that plaintiff  “presented sufficient direct evidence of unlawful race discrimination by showing that there are genuine issues of material fact regarding the District’s affirmative action policies, regarding whether the District acted pursuant to those policies when it failed to promote her to the assistant principal positions, and regarding whether the District’s affirmative action policies are valid.

Mitchell H. Rubinstein

October 16, 2009 in Employment-At-Will & Exceptions | Permalink | Comments (0)

Tuesday, October 6, 2009

OR: Discharge for complaints of deceptive practices was lawful

A car salesman failed to establish that he was wrongfully discharged in violation of public policy after he allegedly was fired for reporting to management that an outside firm with which his employer had contracted had engaged in unlawful sales practices. State law reflects a public policy that prohibits the kind of deceptive conduct about which the employee complained, the Oregon supreme court acknowledged. However, the high court stressed that the employee was never asked by his superiors to do anything unethical or unlawful. Moreover, although the employee argued that his internal complaints fulfilled an important public duty or served an important public interest, the employee did not report the unlawful practices to any entity with authority to take action against the outside firm. Nor did the employee report that he had been required to engage in unlawful trade practices or that his employer was engaged in such practices. Thus, a jury verdict in favor of the employee was properly overturned, the supreme court found (Lamson v Crater Lake Motors, Inc, OreSupCt, August 20, 2009

October 6, 2009 in Employment-At-Will & Exceptions | Permalink | Comments (0) | TrackBack (0)

KY: Absent affirmative request to violate law, wrongful discharge claim fails

A company controller who alleged that she was fired because she refused to participate in her employer’s tax fraud scheme could not sue for wrongful discharge in violation of public policy, a Kentucky appeals court ruled. The employee’s failure to show that her employer affirmatively asked her to violate the law, or that she was terminated for her refusal to do so, was fatal to her claim. Believing that the company president was engaged in tax evasion, tax fraud, and fraud on the company books when he deposited certain rebate checks into his personal bank account, the employee refused to sign off on her employer’s financial documents. She was ultimately terminated for incompetence upon the recommendation of an outside consultant. Although the employee argued that the hiring of the consultant was a pretext for firing her, the court noted that the employee never personally received or handled the rebate checks. Nor was she ever told that her job would be jeopardized if she did not go along with the alleged scheme. Most importantly, there was no evidence that the employee was ever asked or directed by her superiors to engage in illegal activities. “Lest there be any confusion or doubt,” the court stated, “we hold an employee claiming wrongful discharge due to a refusal to violate the law must show an affirmative request to him/her by the employer to violate the law.” (Welsh v Phoenix Transportation Services, LLC, KyCtApp, August 14, 2009

October 6, 2009 in Employment-At-Will & Exceptions | Permalink | Comments (0) | TrackBack (0)

Monday, October 5, 2009

Employee Cannot Be Discharge For Surving On Jury

“Everyone knows that a juror’s job is protected during her absence, right?” a federal district court queried, in a suit brought pursuant to the Jury System Improvement Act. Nonetheless, a terminated school guidance counselor failed to meet her burden of establishing that her jury service was the “but for” cause of her discharge, the court held, despite admittedly wrestling with its conclusion that the plaintiff was a more credible witness than the principal who carried out the adverse action. In so holding, the district court applied the test articulated by the Supreme Court in Gross v FBL Financial Services to the federal juror protection statute—suggesting the High Court’s recent ADEA ruling will have a broad impact. “The language of the Juror Act is very similar to that of the ADEA,” the court noted. “It prohibits an employer from taking adverse action against an employee `by reason of’ that employee’s federal jury service.” The plaintiff could not establish she was discharged solely by reason of her absence due to jury duty, since it was clear the principal was required to reduce her staff and had limited options in doing so (Williams v District of Columbia, August 21, 2009).

October 5, 2009 in Employment-At-Will & Exceptions | Permalink | Comments (0) | TrackBack (0)

Monday, August 31, 2009

Smoke-free workplace rule does not interfere with employment at will

Here is a new one.In McNeil v Charlevoix County, ___Mich.___(Mich S.Ct, July 21, 2009), the court holds that a local regulation prohibiting an employer from discharging, refusing to hire, or otherwise retaliating against an employee for exercising the right to a smoke-free work environment, and which also provides employees with a private cause of action to seek its enforcement, does not contravene the law of at-will employment.
 Employers affected by the regulation argued that because it impinged on an employer’s common law right to discharge an employee at will, the regulation violated public policy and was, therefore, void. Justice Markman, writing for the dissent, argued that he would not extend the exceptions to at-will employment to include local regulations "at the very least where such regulations conflict with statewide public policy." However, the majority stated, "[g]iven the Legislature’s statutory mandates to minimize the toxic effects of smoking on human health, the authority granted in the [Public Health Code] to local health departments to prevent and control human health hazards and the facts of this particular case, we disagree with the partial concurrence and partial dissent’s view that the [public policy] exceptions to the at-will employment doctrine cannot possibly apply here." Thus, the court upheld the regulation.

MItchell H. Rubinstein

August 31, 2009 in Employment-At-Will & Exceptions | Permalink | Comments (0) | TrackBack (0)

Thursday, May 28, 2009

Public Policy Exception To Employment At Will and Porn

Blog Workplace Prof Blog picked up on a story by Mass Lawyers Weekly here and the Legal Ethics Forum blog about a Massachusetts appellate decision that reversed a trial court's dismissal of an unlawful termination claim.  The plaintiff is an attorney who discovered child pornography on the computer of one of his firm's important clients.  He notified his firm, which instructed him to hire a specialist to erase the pornography from the computer.  He refused, stating that they couldn't destroy evidence of a crime and he ultimately notified the FBI.  The attorney was eventually fired by the law firm.  The appellate court held that revealing the child pornography didn't threaten any protected privileged or confidential information.  It is hard to believe that it took a reversed trial decision to get to that point. It is also hard to believe that a law firm would not know better. This just demonstrates once again, that lawyers are employees like everyone else.

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

May 28, 2009 in Employment-At-Will & Exceptions | Permalink | Comments (0) | TrackBack (0)

Monday, March 30, 2009

Public Policy Cause of Action Can Exist Even If Employee Does Not Make A Report Of Illegal Activity

Gossett v Tractor Supply Co, Inc, ___S.W.2d___(Tenn Ct App, March 2, 2009), is an interesting decision. The court held that an at-will employee who is terminated as a result of his refusal to participate in an illegal activity, or one in contravention of a clearly defined public policy, may maintain a common law cause of action for retaliatory discharge even where the employee fails to report the alleged activity. An employee cannot be discharged because the employee refused to participate in or to be silent about illegal activity in the workplace, the court explained, and reporting the alleged illegal activity is not a necessary element of a common-law retaliatory discharge claim. Noting that, in so ruling, it has created a split among state appeals courts on this issue, the court encouraged the Tennessee supreme court to resolve the question of "whether a common-law cause of action for retaliatory discharge exists for the refusal to participate in an alleged illegal activity or activity in contravention of a well-established public policy in the absence of a reporting to someone other than the person alleged to have instructed the employee to perform that act.

March 30, 2009 in Employment-At-Will & Exceptions | Permalink | Comments (0) | TrackBack (0)

Optician who made complaint to state board has retaliatory discharge claim against Walmart under Tenn. law

Dishmon v Wal-Mart Stores, Inc, ___F.Supp.2d___ (MDTenn, February 17, 2009), is an interesting lower court decision applying Tenn state employment law.  The court denied summary judgment to Wal-Mart in a case in which a store optician alleged he was terminated in retaliation for making complaints about the company's practice of allowing unlicensed persons to dispense optical products without a licensed optician present. Wal-Mart fired the optician after an investigation into his own use of the practice and after he and another employee complained to a state board about the practice. He questioned the legality of the practice through his call to the state board—a report that "constituted an accusation that Wal-Mart's practices violated… state law." The optician was terminated mere days after he made his complaint although Wal-Mart knew of the policy weeks, if not months before. Moreover, the optician established a genuine issue of material fact that the stated reason for his discharge was pretextual, where the investigation into his conduct was unfair and did not conclusively find that he was responsible for the policy. Thus, the plaintiff established the elements of a retaliatory discharge claim under Tenn. law.

March 30, 2009 in Employment-At-Will & Exceptions | Permalink | Comments (0) | TrackBack (0)

Sunday, January 11, 2009

NJ Supreme Court Issues Major Employment Law Decision

Njsupreme08_2 Tartaglia v. UBS Paineweber, __N.J. ___(Dec. 16, 2008), is a major N.J. Employment Law decision. In a well reasoned opinion, the Court held, in a case of first impression, that a common law retaliatory discharge claim did not require an actual or threatened complaint to an outside agency. Here the plaintiff, an attorney, had made an internal complaint that a company policy violated the rules of professional conduct governing attorneys' communications with unrepresented employees. As the Court explained:

Even though we do not require that an external complaint be made to support a Pierce claim, the remedy is not unbounded. Like the CEPA remedy to which it gave rise, it requires in this context an expression by the employee of a disagreement with a corporate policy, directive, or decision based on a clear mandate of public policy derived from one of the sources we identified in Pierce. It requires, as well, a sufficient expression of that disagreement to support the conclusion that the resulting discharge violates the mandate of public policy and is wrongful. That is to say, a complaint to an outside agency will ordinarily be a sufficient means of expression, but a passing remark to co-workers will not. A direct complaint to senior corporate management would likely suffice, but a complaint to an immediate supervisor generally would not.

We do not intend to suggest that we will elevate an employee's expression of purely personal viewpoints to a level that will preclude termination. An employer remains free to terminate an at-will employee who engages in grousing or complaining about matters falling short of a "clear mandate of public policy" or who otherwise interferes with the ordinary operation of the workplace by expressions of personal views on matters of no real substance. Baseless complaints or expressions of purely personal views about the meaning of public policies will not meet the test for a "clear mandate" regardless of the manner or mode in which they are voiced.

This appeal also presents us with a second aspect of plaintiff's Pierce claim, not directly addressed by the appellate panel. In order to overcome the motion for summary judgment, plaintiff was also required to identify a clear mandate of public policy that PW violated, which raises the question of whether the conflict of interest provisions of the RPCs suffice for this purpose. Although we did not create an exhaustive list in Pierce, we identified some sources of public policy mandates which could support relief. We held that the sources "include legislation; administrative rules, regulations or decisions; and judicial decisions." Pierce, supra, 84 N.J. at 72. We went further, however, because Dr. Pierce pointed to the Hippocratic Oath as a code of ethics that should qualify as a clear public policy mandate, arguing that her termination for adhering to its dictates should support relief. In rejecting that assertion, we commented that "[i]n certain instances, a professional code of ethics may contain an expression of public policy. However, not all such sources express a clear mandate of public policy. For example, a code of ethics designed to serve only the interests of a profession . . . probably would not be sufficient." Ibid. 

We have previously concluded that, in some circumstances, a statutory conflict of interest provision could suffice as a clear public policy mandate. MacDougall v. Weichert, 144 N.J. 380, 401-03 (1996) (considering implications of the Local Government Ethics Law, N.J.S.A. 40A:9-22.1 to -22.25). We looked to the statute to decide whether the employee was terminated for reasons that would equate with a violation of that statutory prohibition. Id. at 402. In that context, we found a sufficient expression of public interest in the statute to permit the claim to proceed to trial. Id. at 403. Our consideration of the record in this matter leads us to a similar conclusion. Although we need not consider whether the RPCs in general would suffice for this purpose, we find in RPC 1.7(b), relating to conflicts of interest, a sufficiently clear expression of a public policy mandate to permit it to support a Pierce cause of action.  We do so, however, because this RPC, like the statute we considered in MacDougall, implicates such basic duties embraced in our rules relating to conflicts of interest, see In re Opinion No. 653 of the Advisory Comm. on Prof'l Ethics, 132 N.J. 124, 129 (1993) ("One of the most basic responsibilities incumbent on a lawyer is the duty of loyalty to his or her clients. From that duty issues the prohibition against representing clients with conflicting interests."); see also State ex rel. S.G., 175 N.J. 132, 139 (2003) ("RPC 1.7 is rooted in the concept that `[n]o man can serve two masters,' . . . ."), that it may implicate the kind of clear policy mandates that Pierce is designed to remedy.

Mitchell H. Rubinstein

January 11, 2009 in Employment-At-Will & Exceptions | Permalink | Comments (1) | TrackBack (0)

Sunday, November 23, 2008

Discharge of Assistant Mger Reporting Child Abuse Held Not To Be A Public Policy Violation!

Arispe v Walgreens Co, (Iowa Ct App, October 29, 2008), demonstrates how difficult it is to establish a public policy violation.
An Iowa appellate court held that a Walgreens assistant manager who alleged she was discharged for reporting suspected child pornography to the police after viewing questionable pictures of a young girl that were processed at the store, failed to state a claim for wrongful discharge in violation of public policy. Remarkably, the court held that a state statute requiring film or photo processors to report pictures of minors engaged in sex acts does not express a clear public policy in favor of reporting suspected child pornography. Nor does the law specifically prohibit employers from discharging employees who report depictions of child pornography.
With respect to a statute protecting the reporting of child abuse, the court found that statute inapplicable. because the employee did not express a concern that the photographs involved child abuse; rather, she believed the pictures constituted child pornography. Thus, the public policy of reporting suspected child abuse was not undermined by the employee's termination.
This is a tough decision and I question whether it was the right one.

Mitchell H. Rubinstein


November 23, 2008 in Employment-At-Will & Exceptions | Permalink | Comments (1) | TrackBack (0)