~ by Michael Josephson, Attorney
Fibich Hampton Leebron Briggs & Josephson, LLP
Most employers prefer the at-will employment arrangement. They can fire their employees whenever it suits them for almost any reason (with narrow exceptions for anti-discrimination, disability and similar laws). An at-will employee works at the whim of his employer, and good job performance is no protection from being fired.
That might be about to change – at least a little bit.
A case that is on-going in Maryland federal court is deciding whether an employer has legally limited its ability to fire an at-will employee by enacting a company policy against retaliation. The case is Scott v. Merck & Co., and the policy being sued over says this –
We will not tolerate retaliation against any employee for raising a business practices issue in good faith... The fact that an employee has raised concerns in good faith, or has provided information in an investigation, cannot be a basis for denial of benefits, termination, [or] demotion...
What happened to Jennifer Scott
Jennifer Scott is a former Merck employee who went to the company’s ethics committee with a list of complaints about her supervisor, including that he:
- forced her to allow co-workers to use her company credit card – a clear violation of company policy; and
- insisted that she market Merck drugs in a way that violated company policy and FDA regulations.
The ethics committee agreed. In the meantime, her supervisor was transferred to another position in the company.
After his transfer, the former supervisor was allowed to perform Scott’s annual review even though he had been the subject of an ethics investigation begun by Scott’s disclosures. Not surprising, he fired her. She then sued.
Merck Defends Supervisor’s Dismissal of Scott
Before trial, Merck tried to have Scott’s case thrown out arguing that at-will employment allows Merck to fire Scott for any reason. Scott countered that Merck’s anti-retaliation policy, which all Merck employees were informed existed, altered the at-will employment by specifically protecting her from being fired in retaliation.
The federal district court previously agreed with Scott.
Merck’s anti-retaliation policy was specific enough to prevent an employee from being fired in retaliation for telling the ethics committee about a supervisor’s bad business practices. It seems that Merck still could fire Scott for just about any reason – but not a reason in clear violation of their anti-retaliation policy.
Based on this legal conclusion, Scott’s case was not dismissed. Now Merck is forced to defend itself and the reason Scott was fired at trial.
What could this mean for other at-will employees?
Employees have to look closely at their company’s policies. A “do good” policy that states a general goal of being good or treating employees fairly does not change the at-will character of the employment relationship. These employees still can be fired for any reason.
However, employees whose company has enacted a policy that make specific promises about how or under what circumstances the employees will not be fired may have an employment contract that limits their at-will status. They still are at-will employees and still can be fired for almost any reason; however, under the Scott v. Merck & Co. court’s ruling, these employees should have limited protection from being fired for doing the specific thing the company’s policy promised could not be a valid basis for dismissal.
