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Vol. 73, No. 7, July 2000 |
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The Defendant's
Perspective
Hausman Further
Guts Wisconsin's
Employment-at-will Doctrine
by Katherine L. Williams
Contrary to the plaintiffs' perspective, Hausman was one of
those cases where the court fashioned a remedy to address the specific
situation presented by the plaintiffs in that case. Even though there
was a statutory penalty for discharging employees who reported nursing
home resident abuse or neglect, the court dismissed that remedy as inadequate,
and refused to wait for the legislature to close the statutory loophole
in the Wisconsin statutes.1 (Please see
the accompanying sidebar.) Instead, while
the plaintiffs in Hausman had clearly not stated a cause of action
for wrongful discharge as that cause of action had been fashioned by
the court in Bushko, the court found a way to recognize a cause
of action for wrongful discharge under the facts and circumstances of
the Hausman case. What is troublesome for employers is what comes
next with respect to wrongful discharge. Over the past decade, the court
has slowly chipped away at the narrow public policy exception to employment-at-will,
and Hausman represents yet another step toward a broad whistle-blower
exception to employment-at-will in Wisconsin.
Prior to Hausman, the cause of action for wrongful
discharge was predicated upon an employee's refusal to obey
an employer's command to violate a public policy as established
by a constitutional or statutory provision.2
Shortly after Bushko v. Miller Brewing Co. was decided,
the court extended the wrongful discharge rule to include discharges
that violated the spirit, as well as the letter, of a statutory
provision.3 Six years later, in Winkleman
v. Beloit Memorial Hosp., the supreme court expanded the
wrongful discharge exception to employment-at-will to include
employees discharged based upon the violation of a public policy
established by a regulation, as opposed to a statutory or constitutional
provision.4 Thus, by the time the
Hausman case reached the Wisconsin Supreme Court in late
1997, Wisconsin employers had witnessed a slow and steady expansion
of the terms and conditions under which the court would recognize
a wrongful discharge claim.
At first reading, Hausman appears to be limited to
the specific fact situation presented in that case. However,
as plaintiffs' counsel indicates, there is no reason to
limit the court's holding to nursing home employees who
report resident neglect or abuse. The troublesome language in
Hausman is the court's statement that "[t]he
employer's personnel decisions are not impermissibly interfered
with by a requirement that the employer not retaliate against
an employee complying with the dictates of a fundamental public
policy statement."5 In Hausman,
the court viewed the plaintiffs' legal obligation under
Wisconsin Statutes section
940.293(3)6 to report resident
neglect or abuse as a "sufficiently certain" public
policy to allow courts to easily identify covered cases, and
thus, the court reasoned that employers will be protected from
having every termination decision subjected to court scrutiny.7
Precedent does not support this view. The cause of action
for wrongful discharge, as first recognized, required an employee
to identify a public policy as established by a constitutional
or statutory provision. This requirement was then lessened in
Wandry to permit an employee to invoke a public policy
"outside the precise reach of the statute."8 In Hausman, the "precise reach"
of the statute relied upon by the plaintiffs was relatively clear.
However, if the Wisconsin courts are permitted to consider the
spirit and intent of a statute, regulation, or constitutional
provision in determining the public policy contained therein,
and if an employee need no longer refuse an employer's express
command or request to violate that public policy in order to
state a cause of action for wrongful discharge, then the Pandora's
box referenced in Brockmeyer and Bushko has indeed
been opened.9
It is the elimination of the requirement that an employee
be discharged for refusing a command to violate a public policy
that is the most troublesome aspect of the Hausman decision
for Wisconsin employers. Although the court reaffirmed its stance
that an employee's conduct must be more than merely praiseworthy
to state a claim for wrongful discharge, the court admittedly
went beyond the four corners of Bushko in recognizing
a cause of action for wrongful discharge in Hausman, and
held that an employee has a cause of action for wrongful discharge
when the employee is discharged for fulfilling an affirmative
obligation under the law. If this affirmative obligation, or
this public policy, can be invoked outside the precise reach
of the statute, then any employee who has acted in accordance
with the public policy of a statute can at least assert a claim
that he/she has an affirmative obligation to do so.
Katherine L. Williams, Marquette 1987 magna cum laude, joined
the firm of Beck, Chaet, Molony & Bamberger S.C. of Milwaukee
in 1986. Her practice is concentrated on representing businesses
in labor and employment-related matters. She is a frequent speaker
on topics related to management rights and responsibilities. |
Contrary to the view of plaintiffs' counsel, the "floodgate"
argument in public policy cases that every termination will be
open to court scrutiny is not overblown. Under Bushko,
an employee cannot state a cause of action for wrongful discharge
unless the employee can establish that he or she was discharged
for refusing to violate a fundamental public policy. Under these
circumstances, there is a nexus between the employee's conduct
and the discharge. If the employee's conduct is merely consistent
with public policy, and the employee is later discharged by the
employer for other reasons, which was the employer's argument
in Hausman, then there is no nexus between the conduct
and the discharge. Any employee who makes a complaint about anything
that can be remotely tied to public interest, health, or safety
would be able to assert a claim for wrongful discharge, even
absent a temporal proximity between the complaint and the discharge.
As the court noted in imposing the refusal of a command requirement
in Bushko, if intent becomes an inquiry, the courts will
not be able to routinely screen these cases, or dispose of them
on summary judgment, as there would always be a question of fact
as to the reason for the discharge.10
The Hausman decision has clearly opened the door to
a further evisceration of employment-at-will in Wisconsin. While
it remains to be seen how expansively the court interprets its
latest exception to employment-at-will, the Hausman decision
will obviously result in more wrongful discharge claims, and
Wisconsin employers need to be more aware of, and more sensitive
to, situations that may give rise to a "whistle-blower"
type cause of action.
Endnotes
1 Hausman,
214 Wis. 2d 655, 670, 571 N.W.2d 393, 399 n.9 (1997).
2 Bushko, 134 Wis. 2d 136,
396 N.W.2d 167 (1986).
3 Wandry, 129 Wis. 2d 37,
384 N.W.2d 325 (1986).
4 Winkelman v. Beloit Mem'l
Hosp., 168 Wis. 2d 12, 483 N.W.2d 211 (1992).
5 Hausman,
214 Wis. 2d at 668, 571 N.W.2d at 398.
6 Wis. Stat. section
940.923(3) provides:
"ABUSE AND NEGLECT; PENALTIES. (a) Any person in charge
of or employed in any facility or program ... who does any of
the following, or who knowingly permits another person to do
so, may be penalized under par. (b):
"1. Intentionally abuses or intentionally neglects a
patient or resident.
"2. Recklessly abuses or recklessly neglects a patient
or resident.
"Punishment for failure to act, be it through reporting
or taking some other form of action, ranges from a Class B misdemeanor
to a Class D felony."
7 Hausman,
214 Wis. 2d at 668, 571 N.W.2d at 398.
8 Wandry, 129 Wis. 2d at
47, 384 N.W.2d at 329.
9 Brockmeyer, 113 Wis. 2d
561, 580, 335 N.W.2d 834, 843 (1983), (Day, J. concurring); Bushko,
134 Wis. 2d at 146, 396 N.W.2d at 172.
10 Bushko, 134 Wis. 2d
at 141, 396 N.W.2d at 170.
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