Pop quiz! You are an employee for Walmart and as you arrive at work, you see a man leave his dog locked in a car with the windows rolled up. It’s 90 degrees out and you are worried about the life of the dog. What do you do to avoid being fired?
(A) Do nothing
(B) Call the police
(C) Find the owner and convince them to do something
(D) Grab a brick and rescue the dog yourself
(E) Tell your manager and go back to work
(See poll at end of blog)
If you live in Georgia (and five other states, including Alabama, Louisiana, Maine, Nebraska, New York, and Rhode Island), this is a trick question. In these dirty half-dozen states, there is no public policy exception to terminating an employee in an at-will employment arrangement.
Now, most of you reading that sentence just had your eyes glaze over and may have fallen asleep in some law-jargon-induced, narcoleptic seizure. That’s understandable. But luckily, there are people specially trained to decipher such gibberish.
So let break this down : 1) At will employment is an employment law doctrine that defines an employment relationship in which either the employer or employee can immediately terminate the relationship at any time with or without any advance warning. 2) A public policy exception to at will employment allows an employee to recover if they are wrongfully terminated for a reason that typically benefits the public or society at large. Such public policy exception could include whistleblowing on an employer who knowingly produces a defective product, reporting illegal actions by the employer, or a filing workers’ compensation claim. In states with public policy exceptions, employees are protected from the retaliatory actions of their employer when the employee engages in conduct that benefits society, even at the expense of the employer. The reasoning for such exceptions is that employees are naturally discouraged from certain lawful activities if they know that they could be terminated for engaging in those activities.
The quiz at the beginning of this article is based upon a Walmart employee in Ontario, Canada who was fired for taking action when she saw a dangerous (and possibly illegal) activity in the parking lot where she worked. While Walmart will claim insubordination as the reason for termination (arguing with her boss and declaring she won’t abide by store policy won’t win an employee any favors), a strong case could be made that the employee’s sin was in acting independently of consulting with her manager. This sort of punitive action will likely discourage other employees at that Walmart from acting when they bear witness to any dangerous or illegal activity on the store premises. See a dog or baby locked in a car in the summer? Get the manager if he isn’t busy and get back to work. See a person being attacked? It’s none of your business, you have bills to pay.
As mentioned earlier, Georgia does not have a public policy exception for wrongful termination. Any employee of a private employer can be fired for any good reason, bad reason, or no reason at all. The employer cannot fire an employee due to race, gender (sometimes), national origin, religion, or disability, but beyond that, there’s not much else that can be done. You cannot be fired for voting, jury duty, or military service, but that’s pretty much it.
Employers, however, should use their ability to fire employees with relative abandon and impunity sparingly, but not for any real legal reason. Training good employees can be costly and time consuming. High turnover will deplete morale. And having employees afraid to bring management’s attention to activities that open up the company to potential litigation is a recipe for disaster. Instead, employers should reward employees for their diligence, honesty, and willingness to act. Management should be receptive to criticism, understanding of grievances, and willing to act when there is a moral imperative to do so.
Robert S. Bexley, Attorney
Bexley Law Firm, LLC