Labor & Employment Law

Employer’s can not force you to break the law

By Michael Goldstein, Esq.

There is no clearly established public policy requiring employers to refrain from demanding that their adult employees work long hours, nor is any public policy directly served by employee’s refusal to work long hours. Upton v. JWP Businessland, 425 Mass. 756, 682 N.E.2d 1357 (1997In DeRose v. Putnam Management Co., Inc., 398 Mass. 205, 496 N.E.2d 428 (1986), $25 million dollars in securities went missing and the FBI investigated. When a former employee eventually went on trial for the theft, the management ordered the Plaintiff to lie under oath. ?You are going to be testifying, you better implicate him [McGrath] because you know he is guilty.? The plaintiff responded that he ?didn’t know any such thing.? Nothing further was said. In his testimony, the plaintiff did not implicate.

Plaintiff was fired because he did not implicate a former employee at a criminal trail. The ?seminal? case in this area is Petermann v. International Bhd. of Teamsters, Local 396, 174 Cal.App.2d 184, 188-189, 344 P.2d 25 (1959) where an employee was fired for not testifying falsely. The Massachusetts SJC stated, ?We too conclude that, even in cases where the employer does not gain a financial advantage, an at-will employee has a cause of action for wrongful discharge if the discharge is contrary to public policy.?

Redress is available for at-will employees who are terminated for asserting a legally guaranteed right (e.g., filing workers’ compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury). Falcon v. Leger, 816 N.E.2d 1010, (2004)

Public policy exception to at-will employment rule has been made available to employees discharged for performing important public deeds. Mistishen v. Falcone Piano Co., Inc., 630 N.E.2d 294 (1994)

Jurisdictions outside of Massachusetts have also held it illegal to terminate an employee for failure to comply with managements directive to violate a public policy.  More specifically, in Larkey, the court affirmed a jury verdict for the plaintiff, who claimed that, while he was employed as a truck driver, his employer wrongfully discharged him in retaliation for his refusal to violate Illinois law by driving his truck through the state with a load greater than the statutory maximum 73,280?pound weight limit. Remington Freight Lines, Inc. v. Larkey, 644 N.E.2d 93, Ind.App. 2 Dist. (1994). 

The court in Winkelman v. Beloit Memorial Hosp., 168 Wis. 2d 12, 483 N.W.2d 211 (1992), held that evidence supported a finding that the discharge of a nurse who refused to work on a ward for which she was not qualified violated the public policy that the sick be cared for only by those qualified to do so. 

In another case on point,  an employee refused to violate the Federal Clean Air Act by dispensing leaded gasoline into an automobile equipped to receive only unleaded gasoline. Phipps v. Clark Oil & Refining Corp., 408 N.W.2d 569 (1987)

Full post as published by Massachusetts Employment Law Blog on June 17, 2008 (boomark / email).