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Revisiting the Common Law Wrongful Discharge Claim

In my previous post regarding the Maryland Job Applicant Fairness Act, I noted that discharged employees could attempt to bring common law wrongful discharge claims against their employer under the theory that a termination in violation of the Act runs afoul of a clear mandate of public policy.

Maryland generally adheres to the “at-will” employment doctrine, meaning that an employee can be discharged at the will of the employer with or without cause, and the employee may also voluntarily quit at any time.  Notwithstanding the “at will” doctrine, a civil right of action may exist in favor of an employee when the termination was allegedly motivated by an unlawful purpose.  Several anti-discrimination statutes expressly grant a right of action in favor of an employee who believes he or she has been discharged in violation of the statute.  Where no statutory right of action exists, the employer still faces the threat of a common law wrongful discharge claim, which has long been recognized by the Maryland Courts where the discharge violates a clear mandate of public policy.

A recent Court of Appeals case, Parks v. Alpharma, Inc., 421 Md. 59 (2011), revisited the standard that a discharged employee must meet in order to state a prima facie claim for wrongful discharge, including what constitutes a clear mandate of public policy.  Debra Parks was a marketing employee for Alpharma, a pharmaceutical company, and claimed that she was wrongfully terminated as a means of retaliation for complaining about Alpharma’s allegedly illegal marketing activities regarding the drug, Kadian.  She specifically claimed that her discharge was wrongful because her complaints involved Alpharma’s purported violations of the Maryland Consumer Protection Act (“CPA”), the Federal Trade Commission Act (“FTCA”), and certain FDA regulations.  In affirming the lower court’s dismissal of Ms. Parks’ complaint, the Court of Appeals reiterated that simply being discharged for reporting an employer’s violation of a statute was not sufficient to state a viable cause of action that the termination was against a clear mandate of public policy.

The Court noted that since recognizing the tort of wrongful discharge in the case of Adler v. American Standard Corp., 291 Md. 31 (1981), a plaintiff must allege that the termination violated a “sufficiently clear” and declared mandate of public policy, and proceeded to cite examples of cases in which such a clear mandate existed, such a terminating an employee for reporting an activity that she was mandated by law to report or terminating an employee for refusing to engage in criminal conduct.  However, in cases similar to Ms. Parks’ claim, where the employee is terminated for reporting the employer’s failure to adequately perform a legal duty, a clear mandate of public policy is not simply to be presumed.  In these types of cases, the Court reiterated its words in Adler that a general allegation that the offending activity of the employer was “clearly” against public policy does not state a claim upon which relief could be granted because it is too general, vague, conclusory, and unspecific.  The Court also borrowed the following quote from a prior opinion to explain the public policy exception to the at-will doctrine: “In exercising our measured authority to define public policy…we must strive to confine the scope of public policy mandates to clear and articulable principles of law and to be precise about the contours of actionable public policy mandates.”  Ms. Parks was unable to identify any specific and express public policy mandate to be found in the CPA, FTCA, or FDA regulations that would serve as a basis for the Court to recognize an exception to the employment at-will doctrine.  The Court noted that the breadth of these statutes made it extremely difficult to discern “the specificity of public policy” required to support a wrongful discharge claim:

“The extent of the public policy mandate contained in the [CPA] supports the breadth of its enforcement, but undermines its utility in the context of a wrongful discharge claim, for…policies should be reasonably discernible from prescribed constitutional or statutory mandates, to ensure that our decisions to extend the tort of wrongful discharge emanate solely from clear and articulable principles of law.”

Although not expressly stated, the Court’s opinion evidences a clear concern that broad, expansive statutory prohibitions, such as unfair trade practice laws, should not serve as the basis for a public policy exception underlying a wrongful discharge claim, as allowing such causes of action to go forward would open up the floodgates of potential wrongful discharge claims being where an employee complains about any potentially questionable business practice or decision.  Where the prohibitions are more specific and direct, such as with the Maryland Job Applicant Fairness Act, employers would be wise to recognize the possibility of a wrongful discharge claim.

A full copy of the Parks opinion can be found http://mdcourts.gov/opinions/coa/2011/115a10.pdf.

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