Employment-At-Will, Public Policy, and the Nursing Profession

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1 Employment-At-Will, Public Policy, and the Nursing Profession Frank J. Cavico* and Nancy M. Cavico** Table of Contents I. Introduction II. The Employment-At-Will Doctrine III. The Public Policy Exception IV. The Sources of Public Policy V. Public Policy Nursing Cases A. Introduction B. Statutes Expressly Prohibiting Discharge C. Refusal to Violate a Statute D. Pursuing Constitutional or Statutory Rights E. Discharge Inconsistent with a Legislative Schem e F. Refusal to Perform An Illegal Act G. Performing An Important Public Obligation H. W histleblowing I. Discharge Contrary to the Public Interest J. Discharge for Complying with a Code of Ethics 209 K. Outrageous and Abusive Discharges L. Conclusion VI. Nursing as a Profession VII. Stakeholder Analysis VIII. Recommendations IX. Conclusion * Professor of Business Law, Health Care Law, and Ethics, Wayne Huizenga School of Business and Entrepreneurship, Nova Southeastern University Ft. Lauderdale, Florida, LL.M., University of San Diego School of Law, J.D., St. Mary's University School of Law, Member of Florida and Texas Bar Associations. ** Registered Nurse, Emergency Room Holy Cross Hospital, Ft. Lauderdale, Florida, Adjunct Professor of Clinical Nursing Broward Community College, Ft. Lauderdale, Florida B.S.N., College of New Rochelle, Legal Assistant Certificate, Nova Southeastern University, Member of the American Nurses Association and the Emergency Nurses Association.

2 QUINNIPIAC HEALTH LAW [Vol. 8:161 I. Introduction A nurse as a professional employee who is a member of a profession may confront situations where the nurse's professional duties and obligations to the profession conflict with the nurse's responsibilities as an employee to obey his or her employer's directives. This clash of responsibilities and loyalties is especially problematic for the nurse who is an employee at-will, and, consequently, who lacks contract protection for his or her job. The nurse's employer, therefore, may be able to discharge the nurse who refuses to comply with his or her employer's orders, even if the nurse's professional judgment or perceived obligations to the profession direct the nurse's contrary response. The nurse then clearly is faced with the serious dilemma of conflicting duties, demands, and desires. This predicament for the nurse is exacerbated further if the nurse's self-interest in employment and job security emerges as a complicating factor in the dilemma. This conflict not only impacts the nurse and his or her employer, typically a hospital, but also the legal system, the nursing profession, patients, the health care system, and society as a whole. The purposes of this article are to examine the general legal doctrine of employment-at-will as well as the common law "public policy" doctrine thereto in the context of current nursing case law. The various formulations of public policy created by the courts and applied to the nursing profession will be analyzed. A principle of public policy predicated on adherence to the codes of ethics of a profession will be underscored. The status of nursing as a profession governed by a code of ethics will be emphasized. Finally, recommendations to expand ethically the legal interpretation of "public policy" will be offered and appropriate "stakeholder" rationales will be provided to support the suggested legal recommendations. II. The Employment-At-Will Doctrine The long-standing, well-established, traditional, and general employment rule states that when an employee's employment is for an indefinite term and not restrained by a contract, an employer may terminate such an at-will employee for any reason or

3 20051 EMPLOYMENT-AT-WILL cause, or for no reason or cause at all.' In some cases, the employer may even discharge for a morally bad reason, or the wrong or bad cause. 2 Thus, as a general rule, a terminated atwill employee cannot maintain an action for wrongful discharge against his or her employer.' One state, however, Montana, has promulgated a dischargefor-cause statute, thereby abrogating the traditional employment-at-will doctrine. 4 The Montana statute permits a terminated employee to seek damages for wrongful discharge in three circumstances: (1) when the discharge was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy; (2) the discharge was not based on "good cause" (after an initial probationary period); and (3) when the employer failed to comply with its own express personnel policies. 5 "Public policy" as defined by the statute means a policy "concerning the public health, safety, or welfare established by constitutional provision, statute, or administrative rule." 6 If an employer has committed a wrongful discharge, the aggrieved employee's remedies include an award for lost wages and benefits, plus interest and job search expenses, as well as punitive damages if the employer engaged in actual fraud or actual malice in the discharge of the employee. 7 Pain and suffering and emotional distress damages are explicitly forbidden by the stat- 1 Akers v. Kindred Nursing Ctrs. Ltd. P'ship, No. 2:03-GV-0327, 2004 WL , at *2 (S.D. Ind. 2004); Goodman v. Wesley Med. Ctr., 78 P.3d 817, 821 (Kan. 2003); Northport Health Servs, Inc. v. Owens, 107 S.W.3d 889, 893 (Ark. Ct. App. 2003);Jersey v. John Muir Med. Ctr., 118 Cal. Rptr. 2d 807, 811 (Cal. Ct. App. 2002); Spierling v. First Am. Home Health Servs., 737 A.2d 1250, 1252 (Pa. Super. Ct. 1999); Kirk v. Mercy Hosp. Tri-County, 851 S.W.2d 617, 619 (Mo. Ct. App. 1993); Wright v. Shriners Hosp. for Crippled Children, 589 N.E.2d 1241, 1245 (Mass. 1992); Farnam v. Crista Ministries, 807 P.2d 830, 834 (Wash. 1991); Crockett v. Mid-Am. Health Servs., 780 S.W.2d 656, 657 (Mo. Ct. App. 1989); Hinson v. Cameron, 742 P.2d 549, 552 (Okla. 1987); Sides v. Duke Univ., 328 S.E.2d 818, (N.C. App. 1985); Warthen v. Toms River Cmty. Hosp., 488 A.2d 229, 232 (NJ. 1985); Chad E. Wallace, Tennessee's Employment-at-Will Doctrine and the Need for Change, 39-APR TENN. B.J. 18, 21 (2003) (history of traditional rule); Frank Cavico, Employment At Will and Public Policy, 25 AKRON L. Rv., 497, (history, rationale, and criticism of employment-at-will doctrine). 2 Goodman, 78 P.3d at 821; Hausman v. St. Croix Care Ctr., 571 N.W.2d 393, 396 (Wis. 1997); Harney v. Meadowbrook Nursing Ctr., 784 S.W.2d 921, 922 (Tenn. 1990). 3 Deerman v. Beverly California Corp., 518 S.E.2d 804, 806 (N.C. Ct. App. 1999). 4 See Montana's Wrongful Discharge from Employment Act, MONT. CODE ANN (2004). 5 Id (1) (2004). 6 Id (7). 7 Id.

4 QUINNIPIAC HEALTH LAW (Vol. 8:161 ute. 8 This type of wrongful discharge statute must be very specific as to the employment rights accorded to the terminated employee, as a court will be very circumspect in interpreting such a statute so as to abolish the traditional employment rule.' Although the conventional employment-at-will doctrine remains as the almost uniform general employment law rule, it has been modified and delimited by the courts, most notably by the "public policy" exception to the general employment rule. Ii. The Public Policy Exception To the general rule of employment-at-will, an important, now equally well-established, and potentially far-reaching, exception has been the judicially fashioned "public policy" exception." This important legal precept holds that an employer cannot terminate an at-will employee if the discharge would violate the clear, well-defined, and fundamental public policy of the jurisdiction; and to do so accords the terminated employee a wrongful discharge action against his or her employer."' In discussing the rationale for the public policy doctrine, one court declared that it is an obvious and indisputable fact that in a civilized state where reciprocal rights and duties abound the words "at will" can never mean "without limit or qualification"... for in such a state the rights of each person are necessarily and inherently limited by the rights of others and the interests of the public S Id g Randall v. Buena Vista County Hosp., 75 F.Supp.2d 946, 967 (N.D. Iowa 1999) (pointing out that the Iowa Supreme Court did not construe a provision in state law that employers can discharge for "proper cause" as negating the presumption of at-will employment). 10 Cavico, supra note 1, at (providing a definition and rationales for doctrine). 11 Akers, 2004 WL , at *2; Northport Health Sers., 107 S.W.3d at ; Jersey, 118 Cal. Rptr. 2d at 811 ("The exception to the at-will employment principle exists under the law of many otherjurisdictions."); Spierling, 737 A.2d at 1253; Deerman, 518 S.E.2d at 806; Hausman, 571 N.W.2d at 396; Wright 589 N.E.2d at n.1 ("A majority of other States have adopted the public policy exception."); Hays v. Beverly Enters., 766 F.Supp. 350, (WD. Pa. 1991); Farnam, 807 P.2d at 834; Crockett, 780 S.W.2d at 658; Kirk, 851 S.W.2d at 619 ("numerous decisions... consistently relied on the vitality of the public policy exception"); Hinson, 742 P.2d at 552; Watassek v. Michigan Dep't of Pub. Health, 372 N.W.2d 617, 620 (Mich. Ct. App. 1985); Warthen, 488 A.2d 229 at 232; Waggenseller v. Scottsdale Mem'l Hosp., 710 P.2d 1025, (Ariz. 1985); Wallace, supra note 1, at 21 ("The public policy exception is the most significant common law exception."); Cavico, supra note 1, at

5 20051 EMPLOYMENT-AT-WILL... Thus, while there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent. 1 2 It is important to note for public policy purposes that a termination or discharge also includes the concept of a "constructive discharge," that is, according to one court, work conditions "so intolerable" that an employee would feel "compelled to resign."s This legal doctrine, explained another court, "recognizes that employers, in an attempt to avoid liability, might refrain from directly firing an employee, preferring instead to engage in conduct causing the employee to resign."14 Nevertheless, the degree of acceptance of the exception, as well as the precise meaning of "public policy," varies among the jurisdictions. Some jurisdictions are very conservative when it comes to altering the traditional rule of employment-at-will. For example, one court of appeals in Texas, in refusing to create a public policy exception for a whistleblowing nurse's aide who complained to her superiors about poor patient care and patient neglect, explained: "[a]s neither the Texas Legislature nor the Texas Supreme Court has established the State's position in this sensitive area, this Court must exercise judicial restraint and refrain from creating this new right of recovery. To do otherwise would be to exceed our proper authority within the legal framework."' 5 Similarly, in another state court of appeals case, the court refused to expand the public policy exception beyond the situation where an employee was discharged in retaliation for the employee's exercise of rights pursuant to the state's Worker's Compensation Act. 6 The court reasoned that "[i]f such a cause of action generally could be maintained, employers, particularly those in small businesses, would be thrust into economic dilemma by every employment decision. Expansion of 12 Sides, 328 S.E.2d at Goggins v. Rogers Mem'l Hosp., 683 NW.2d 510, 515 (Wis. Ct. App. 2004). 14 Id. 15 Maus v. Nat'l Living Ctrs., 633 S.W.2d 674, 676 (Tex. Ct. App. 1982). 16 Rozier v. St. Mary's Hosp., 411 N.E.2d 50, 53 (Il1. App. Ct. 1980).

6 QUINNIPIAC HEALTH LAW [Vol. 8:161 the [narrow public policy] rule carries the danger of transforming at-will employment into life tenure regardless of work performance." 17 Even in those jurisdictions that subscribe to the exception, the courts therein express frustration in defining the key term "public policy." The Supreme Court of Colorado, although admitting that "the term public policy is not subject to precise definition," did delineate certain "common requirement [s]" for a public policy case. 18 According to the court, public policy must concern behavior that truly impacts the public in order to justify interference into an employer's business decisions. In addition, public policy must be clearly mandated such that the acceptable behavior is concrete and discernable as opposed to a broad hortatory statement of policy that gives little direction as to the bounds of proper behavior. 19 Moreover, one state appellate court noted that "our courts have enunciated no 'bright-line' test for determining if termination of an at-will employee violates public policy." 20 According to one commentator, the public policy exception is "the most difficult exception to define and apply." 1 Nonetheless, one court, in the context of a nursing case, defined "public policy" as "the principle of law that holds no citizen can lawfully do that which has a tendency to be injurious to the public good or against the public good. '22 However, another state supreme court warned that "[p]ublic policy cannot be determined on a subjective basis. Instead, public policy 'should be so thoroughly established as a state of public mind so united and so definite and fixed that its existence is not subject to any substantial doubt.'" 2 3 The court further explained that " [i] t would be both troublesome and unsettling to the state of the law if we were to allow a retaliatory discharge claim to be based on a personal opinion of wrongdo- 17 Id. at Rocky Mountain Hosp. & Med. Serv. v. Mariani, 916 P.2d 519, 525 (Colo. 1996). 19 Id. 20 Deerman v. Beverly California Corporation, 518 S.E.2d 804, 806 (N.C. Ct. App. 1999). 21 Wallace, supra note 1, at Warthen, 488 A.2d at 233; accord, Deerman, 518 S.E.2d at 806 (quotingjohnson v. Mayo Yams, Inc., 484 S.E.2d 840, (N.C. App. 1997)). 23 Goodman, 78 P.3d at 823.

7 2005] EMPLOYMENT-AT-WILL ing. Such a holding.., would effectively do away with the employment-at-will doctrine.1"24 The public policy exception originally developed from the law of tort. 25 Accordingly, in most jurisdictions, the violation of the public policy doctrine gives rise to a tort cause of action with the potential for tort damages. 26 Of course, a tort formulation to a public policy cause of action means that the traditional elements to a tort lawsuit, such as causation, 2 7 must be established by the plaintiff-employee. 28 Yet, in a few jurisdictions, the public policy claim is treated as a contract one. 29 Regardless of the nature of the cause of action, the burden is on the employee to allege expressly and to prove that his or her employer's conduct in terminating the employee was a contravention of the public policy of the particular jurisdiction." The plaintiff employee thus ordinarily bears the burden of proving the elements to his or her public policy case, 3 " and, typically, by "clear and convincing" evidence. 3 2 The initial responsibility of identifying a mandate of public policy in a particular case, however, is regarded as a question of law for the judge to ascertain; 33 the duty is "analogous to interpreting a statute or defining a duty in a negligence case." 34 The determination as to whether the public policy asserted is sufficiently well-defined and fundamental also is re- 24 Id. at Wallace, supra note 1, at Williams v. Hillhaven Corp., 370 S.E.2d 423, 424 (N.C. CL App. 1988); Hinson, 742 P.2d at 552; Cavico, supra note 1, at Goodman, 78 P.3d at 822 (nurse pursuing whistleblowing public policy claim failed to establish a "causal connection" between medical center's staffing policies which allegedly resulted in nurse understaffing and the violation of the standard of care for patients). 28 Goggins, 683 N.W.2d at 515 (constructively discharged whistleblowing nurse failed to establish the legally required "connection" between her discharge and the recognized public policy of protecting hospital patients from abuse and neglect). 29 Hinson 742 P.2d 549, 553 n Goodman, 78 P.3d at (nurse failed to meet her burden of proving the elements of her whistleblowing public policy claim against employer); Crockett, 780 S.W.2d at Warthen, 488 A.2d at 233 ("The burden is on the professional to identity 'a specific expression' or 'a clear mandate' of public policy, which might bar his or her dismissal."). 32 Goodman, 78 P.3d at Rocky Mountain Hosp. & Med. Serv., 916 P.2d at 524 ("The identification of the statutory or constitutional provisions that qualify as clear expressions of public policy is a matter for judicial determination."). 34 Warthen, 488 A.2d at 232.

8 QUINNIPIAC HEALTH LAW [Vol. 8:161 garded as a question of law for the judge to decide. 5 Moreover, the ultimate question as to whether a particular discharge violates the public policy of a jurisdiction typically also is regarded as a question of law for a judge. 6 Once the judge determines that a public policy justified the discharged employee's conduct, then the jury, as the trier of fact, bears the responsibility to determine the truth of the parties' allegations." The issue of constructive discharge, that is, whether a resignation was voluntary or coerced, is viewed as a question of fact for the jury. 38 The public policy doctrine, proclaimed one court, is vital, "consistently relied on," and clearly "alive and well." 39 Nevertheless, as another court related, despite its broad acceptance, the principle underlying the public policy exception is more easily stated than applied. The difficulty... lies in determining where and how to draw the line between claims that genuinely involve matters of public policy, and those that concern merely disputes between the employer and the employee. 40 Similarly, as one judge noted, the "Achilles heel" of the public policy doctrine lies in the definition of the term "public policy. " " Yet, according to another judge, "[i] t is the proper role of the courts to construe the boundaries of 'public policy' and thereby develop common law remedies available to at will employees who are terminated. 4 2 The case law indicates that the two important criteria to ascertain the presence of public policy are whether the policy at issue affects society as a whole, as opposed to the "purely personal or proprietary interest" of the employee or employer, and whether the public policy is fundamental, substantial, or strong as well as well-established, unambiguous, or clear, definite, and fixed. 43 In order to be a "public policy," the policy plainly must 35 Rocky Mountain Hosp. & Med. Serv., 916 P.2d at Wright, 589 N.E.2d at 1243; Warthen, 488 A.2d at Warthen, 488 A.2d at Goggins, 683 N.W.2d at Kirk, 851 S.W.2d at Jersey, 118 Cal. Rptr. 2d at 812 (quoting the California Supreme Court in Foley v. Interactive Data Corp., 254 Cal. Rptr. 2d 211 (1988)). 41 Wright, 589 N.E.2d at Id. 43 Goodman, 78 P.3d at 823; Northport Health Sers., 107 S.W.3d at 894; Jersey, 118

9 20051 EMPLOYMENT-AT-WILL inure to the benefit of the public or be done for the good of the public. 44 Consequently, if the employment dispute concerns merely the "private" or "proprietary" interests of the parties, the public policy doctrine will not apply. 45 For example, in one managerial discretion case, a nurse assistant employed by a hospital was terminated for not following the orders of her supervisor to give a patient an enema. The nurse assistant claimed that she was never given the order either before or during the shift. She also stated that the supervisor had subsequently altered the assignment sheet. The hospital, nevertheless, terminated her for not following orders; whereupon she sued for wrongful termination basing her claim in part on the public policy doctrine. 46 The Supreme Court of Oklahoma measured her claim against all the "nationally recognized" public policy exceptions and thereby concluded that she did not have an actionable public policy tort claim for wrongful discharge. 47 The court then explained why her termination was not in direct violation of public policy: Neither the Hospital nor [the supervisor] ordered [the nursing assistant] to perform an illegal act or denied here an opportunity to exercise her legal rights. She was not prevented from performing an important public obligation nor was her termination occasioned by articulated concerns for the Hospital's legal or ethical conduct. 4 8 In another case, decided by the Washington Supreme Court, the nurse, a primary care nurse, as well as the co-unit supervisor of the acute wing of the employer nursing home, objected to the removal of a nasal-gastric feeding tube from a terminally ill patient. 49 The decision was made by the patient's doctor in connection with a prognosis board and the patient's family, in accordance with state law, the Natural Death Act. 50 Cal. Rptr. 2d at 812 (quoting the California Supreme Court in Foley., 254 Cal. Rptr. at 215); Harney, 784 S.W.2d at 923; Watassek, 372 N.W.2d at Northport Health Serws., 107 S.W.3d at 893; Carl v. Children's Hosp., 702 A.2d at (D.C. Cir. 1997); Waggenseller, 710 P.2d at Northprt Health Servs., 107 S.W.3d at Hinson, 742 P.2d at Id. at Id. 49 Farnam, 807 P.2d at Id. at

10 QUINNIPIAC HEALTH LAW [Vol. 8:161 The nurse objected on religious grounds, as well as, because she was concerned that aspiration and pneumonia were likely to occur as a result of the procedure. 5 The nurse complained to her superiors, to the state's long-term care ombudsman, and then took her story to The Seattle Times, which published a front page "death by starvation" and "executioners" story. 52 The nurse was discharged, constructively so, she maintained; and thereupon brought suit against the nursing home, contending that her employer retaliated against her for expressing her religious views, and, therefore, that she was wrongfully discharged in violation of public policy. 5 " The Supreme Court of the state of Washington was willing to entertain a public policy lawsuit, but not on the facts of this case, because the nurse "must have been seeking to 'further the public good, and not merely private or proprietary interests."' 54 The state supreme court explained that [c]onduct that may be praiseworthy from a subjective standpoint or may remotely benefit the public will not support a claim for wrongful discharge. While the sincerity of [nurse's] belief is not questioned, her concern appears to be directed at urging Christian health care providers to adopt her view rather than furthering the public good. 55 Similarly, if an employment dispute is regarded as merely an "internal matter" between the employer and the employee, then the public policy doctrine will not be applicable. 6 For example, in one Massachusetts case, a registered nurse, who was assistant director of nursing at a hospital, was interviewed by a survey team from the hospital's national headquarters. The nurse told the survey team that there were "communication problems" between the medical and nursing staffs, informed the survey team of "detailed problems" with the assistant chief of staff, and provided specific examples of "patient care problems." 57 The survey team then reported the nurse's comments to the assistant chief of staff and the nurse's employment eventually was terminated 51 Id. at Id. 5 Id. at Farnam, 807 P.2d at Id (citations omitted). 56 Wright, 589 N.E.2d at Id. at 1244.

11 2005] EMPLOYMENT-AT-WILL for "patient care issues that had arisen as a result of the survey. " 5 The nurse sued for wrongful discharge, contending that she was discharged in retaliation for critiquing the hospital's quality of care rendered to patients, and asserting that her retaliatory discharge violated the public policy of the state. 59 The nurse prevailed at the trial court level; however, on direct appeal the Massachusetts Supreme Court reversed the lower court's judgment. Although the high court did acknowledge that several state statutes and regulations governed hospital, nurses, and patient care, the court nonetheless held that "[n]one of these statutes applies to [plaintiff nurse's] situation, however, and we are unaware of any statute that does. Also, we are unaware of any statute that clearly expresses a legislative policy to encourage nurses to make the type of internal report involved in this case."60 Moreover, the court noted that [i]n fact, [the nurse] testified that she did not consider the patient care that caused her concern to be abuse, neglect, or mistreatment warranting a report to the department, nor did she feel that there was an issue of physician incompetence warranting a report to the board of registration in medicine as required by [state statute]."61 The nurse then attempted to base her public policy claim on a state administrative regulation governing nurses, which described the responsibilities and functions of a registered nurse as encompassing communication, collaboration, and cooperation "as appropriate" with other health care providers in order "to endure quality and continuity of care." 6 2 The court, however, deemed the nurse's report "an internal matter" and "internal matters," underscored the court, could not be the basis for a public policy exception to the employment-at-will doctrine. 63 It must be noted that in the preceding case the court's Chief Justice wrote a very strong dissent regarding the lack of a public policy determination. The Chief Justice stated, "I disagree with the court's conclusion that a hospital employer violates 58 Id. at Id. 60 Id. at Wright, 589 N.E.2d at Id. at Id.

12 QUINNIPIAC HEALTH LAW [Vol. 8:161 no public policy when it fires an employee for alerting supervisors to matters detracting from good patient care. The court has construed far too narrowly the public policy exception to the doctrine of employment at will." '64 The Chief Justice then explained his rationale: In the instant case, the court should begin by acknowledging the undisputable public interest in the provision of good medical care by hospitals. We have long recognized that hospitals "conduct enterprises greatly affected with a general public interest." The Legislature clearly shares our concern with patient care. In general, hospitals are heavily regulated.65 Moreover, the Chief Justice made clear that the plaintiff nurse was terminated for reporting problems affecting patient care to a private, national, supervisory organization. According to her, these problems were causing lowered morale among nurses affecting the quality of patient care. As the plaintiff's comments concerned issues affecting patient care, the case does not involve a matter internal to the hospital, over which the public has no concern. 6 6 Therefore, the Chief Justice concluded that the plaintiff raised concerns over employee relationships, not over hospital policy. The plaintiff was not terminated for contributing to the hospital's problems, nor for refusing to accept her supervisor's method of addressing the problems; she was fired for reporting the problems to appropriate accreditation authorities. Such a termination offends the public interest and is actionable. I dissent. 6 7 Even if a discharge arguably violates public policy, if the employer also possesses a "legitimate interest" for the discharge, then the courts may uphold the discharge Id. at 1246 (Liacos, CJ., dissenting). 65 Id. at 1247 (Liacos, C.J., dissenting) (citations omitted). 66 Wright, 589 N.E.2d at 1248 (Liacos, CJ., dissenting). 67 Id. at Rozier, 411 N.E.2d at 54. (A nurse "blew the whistle" on hospital employer to her superiors and then to local newspaper for alleged abuses and improper conduct directed at patients, but the nurse had lied to superiors about job-related matters and failed a polygraph test. Id. at 51. The court stated that "[elven if we recognized a cause of action for retaliatory discharge.. we are of the opinion the discharged employee's

13 20051 EMPLOYMENT-AT-WILL Consequently, despite the existence and wide acceptance of the public policy doctrine, not every discharge of an at-will employee will rise to the level of a public policy violation and a wrongful termination action. The courts have drawn an unmistakable demarcation line between public and mere private policy interests. A private interest alone plainly is insufficient; rather, the employee must show that his or her termination violated a legitimate public policy interest. The seminal issue, therefore, according to one court, is not whether the decision to terminate was 'justified," but whether the termination contravened a public policy that has been clearly articulated in a constitution or by a legislature of by a regulatory agency. 69 Moreover, explained the court, even if a defendant-employer's termination decision was "misguided or based on an erroneous factual premise that would not eliminate the need for a clear expression of legislative policy disfavoring a discharge. "..."70 The responsibility thus evidently falls on the plaintiff employee to show clearly that his or her termination contravened an important public policy recognized by the courts. Despite all the problems inherent in the public policy formulation, this judicially created limitation to the employment-atwill doctrine emerges as a very significant legal doctrine. The continuing development and expansion to the public policy "exception" discloses a judicial disfavor with the conventional doctrine as well as a concomitant effort to fashion a more just principle. The purpose of the public policy exception is to balance, protect, and promote the interests of the employer, employee, and society as a whole. Since public policy is a common law formulation, the courts bear the responsibility to create a well-crafted public policy doctrine that achieves justice while balancing the interests of the employer, employee, and society. In order to fulfill that duty and attain such a laudable goal, the sources and standards of public policy must be ascertained, first generally, and then for the purposes of this article, in the specific nursing context. action should not be allowed, where, as here, plaintiff's own discovery deposition reveals a legitimate reason for the discharge." Id. at 54.). 69 Jersey, 118 Cal. Rptr. 2d at d.

14 QUINNIPIAC HEALTH LAW [Vol. 8:161 IV. The Sources of Public Policy In order to understand the parameters of the public policy tort, it is necessary to ascertain the sources of public policy. Moreover, in order for principled judicial decision-making to exist in this area of law, it is critical to determine the exact standards that will cause a violation of public policy. This article first will examine generally the sources of public policy, with reference to nursing case law, and then, as precisely as possible, will delineate the nursing standards of public policy pursuant to those particular sources. A variety of legal sources can provide the definition for public policy. The public policy that is violated can be one that is predicated on constitutions, statutes, or administrative rules and regulations. 71 For example, in one recent case, a federal district court found sufficient expression of the state's public policy to sustain a nurse's wrongful termination lawsuit based on the state's statute requiring nursing professionals to adhere to the standards set forth by the state's Board of Nursing, particularly the Board administrative regulation requiring nurses to notify in writing the appropriate party regarding any "unprofessional conduct which may jeopardize patient/client safety." 7 2 The discharged employee, it is important to note, may not be required to point to a specific constitutional, statutory, or administrative provision in order to possess a viable public policy claim. 73 Both the federal and state constitutions clearly can be employed as a source of public policy. 74 As one court stated, "[a] discharge for the exercise of a constitutionally conferred right... may support a wrongful termination action in violation of public policy." 75 It is, of course, a legal maxim that constitutions 71 Akers, 2004 WL , at *5; Northport Serus., 107 S.W.3d at 894; Carl, 702 A.2d at ; Hausman, 571 N.W.2d at 396; Farnam, 807 P.2d at 835; Crockett, 780 S.W.2d at 658; Cavico, supra note 1, at Akers, 2004 WL , at *5 (licensed practical nurse discharged for properly reporting insufficient staffing at nursing home). 73 See infra Part E and notes (legislative "scheme" case law); Cavico, supra note 1, at 511; but see Kyle v. Massachusetts General Hosp., 812 N.E.2d 289 (Mass. Ct. App. 2004) (unpublished table opinion) (Regulation promulgated by state Board of Nursing could serve as source of public policy for wrongful discharge cause of action, but not in the internal whistleblowing case herein because the "regulations did not mandate specific reporting procedures."). 74 Carl, 702 A.2d at ; Cavico, supra note 1, at Jersey, 118 Cal. Rptr. 2d at 813.

15 2005] EMPLOYMENT-AT-WILL protect only against "state action" and not purely private conduct. Yet, whether the employee's employer is the "state," that is, a governmental one, is not dispositive of the public policy tort cause of action since a constitution may be a source for a public policy claim in a purely private employment context. It thus is not necessary for the employee to allege "state action."76 It is also not necessary, explained one court, for the employer's "precise act" of discharging the employee to be specifically prohibited by a constitutional provision for the public policy exception to apply. Rather, the constitutional provision must "sufficiently describe the type of prohibited conduct" to afford the employer the opportunity to know the fundamental public policies that are contained in the constitutional law. 77 Moreover, certain courts will find sources of public policy not only in the explicit "letter" of the law, but also in the purpose of the law or the existence of a pattern of constitutional, statutory, or regulatory provisions or "scheme."" 8 For example, the Wisconsin Supreme Court pointed out that it was "uncontested" by the parties that the plaintiff nurse "identified a fundamental and well-defined public policy of protecting nursing home residents from abuse and neglect." 79 The court explained that the public policy was demonstrated in part by reference to several state statutory provisions that prevent nursing homes from retaliating against an employee who provides information of patient abuse or neglect to a state official, prohibit an employer from discharging an employee who reports abuse or neglect of a nursing home resident to a county agency, and impose criminal penalties on employees who knowingly permit abuse or neglect to occur. 80 Judicial decisions also can be used as a source for public policy."' As one court underscored, "[w] e reject the narrow view... that what is cognizable as public policy is only that which has been legislatively enacted." 82 As another court succinctly stated, "[i]n common law jurisdictions, the courts too have been 76 Cavico, supra note 1, at Jensey, 118 Cal. Rptr. 2d at See, e.g., Hausman, 571 N.W.2d at 396; Kirk, 851 S.W.2d at 623; see infra Part E and notes (legislative "scheme" cases); Cavico, supra note 1, at Hausman, 571 N.W.2d at Id. 81 Farnam, 807 P.2d at 834; Cavico, supra note 1, at Spierling, 737 A.2d at 1253.

16 QUINNIPIAC HEALTH LAW [Vol. 8:161 sources of public policy." 3 Thus, when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that court may constitute itself the voice of the community in so declaring. There must be a positive, well-defined, universal public sentiment, deeply engrained in the customs and beliefs of the people and in their conviction of what is right and just and in the interests of the' public weal. 84 Then, the courts possess the power to declarethe public policy of the jurisdiction. Yet, although the courts can be a source of public policy, as one court counseled, the courts are "always subject to legislative corrections, and with progressively less freedom as legislation occupies a given field." 8 5 Some jurisdictions, in addition, maintain that non-governmental sources of public policy may be recognized by the courts, such as the codes of ethics of a profession, which can serve as a source of public policy, and thus which may limit the discretion of the employer to terminate the at-will professional employee. 8 6 One state legislative body has recognized in a health care protection statute that codes of ethics can be a source for public policy so as to protect a whistleblowing health care provider, encompassing the licensed nurse. 8 7 The statute not only protects the good faith reporting of legal violations by health care facilities and providers, but also the violations of ethical standards established by "professionally recognized accrediting or standard-setting" bodies which pose a "potential risk to public health or safety." 88 There is, furthermore, recent case law examining codes of ethics as potential sources for public policy. In fact, courts have held that codes of ethics of the professions can serve as the predicate for a wrongful discharge, public policy, cause of action. A 83 Waggenseller, 710 P.2d at Spierling, 737 A.2d at 1253 (quoting Shick v. Shirey, 716 A.2d 1231 (Pa. 1998)). 85 Waggenseller, 710 P.2d at Horn v. New York Times, 760 N.Y.S.2d 378, (N.Y. 2003) (physician case); Kirk, 851 S.W.2d at 621; Warthen, 488 A.2d at (nursing case); Pierce v. Ortho Pharmaceutical Corp., 417 A.2d 505, 512 (N.J. 1980); Rocky Mountain Hosp. & Med. Serv., 916 P.2d at ; Cavico, supra note 1, at Health Care Protection Act, Wis. STAT. ANN (West 2004). 88 Id (2)(2).

17 20051 EMPLOYMENT-AT-WILL recent leading case for this proposition is the decision of the highest court in New York State, the Court of Appeals, in Horn v. New York Times. 89 Horn was not a nursing case; rather, it involved a physician who was employed by the New York Times as the Associate Medical Director of the paper's in-house medical department, where the physician provided medical care and treatment to fellow employees as directed by her employer. 9 " The physician was terminated by the paper for her refusal to provide unauthorized non-medical personnel with confidential medical information regarding patients without their consent or knowledge. 9 She sued for wrongful discharge pursuant to the public policy exception, contending in part that her discharge was in contravention of the Code of Ethical Conduct of the American College of Occupational and Environmental Medicine. 92 Specifically, the physician pointed to the physician-patient privilege as well as a professional rule defining "misconduct" as "revealing of personally identifiable facts." 9 " The highest court in New York State, however, rejected the plaintiff physician's ethics-based public policy claim, though it did deem her case "sympathetic, and even...seductive. 9 4 The case is very instructive and apropos to the nursing examination herein for several reasons. Initially, it is very important to emphasize that the high court in the state was willing, based on a precedent involving the legal profession, to establish legally the code of ethics of a medical profession as a source for public policy. 95 What distinguished the Horn case from the prior legal profession precedent was the fact that, according to the court, although the physician was applying her professional expertise, she did so "in furtherance of her responsibilities as a part of corporate management." 96 The court further explained that "her provision of these professional services did not occupy 'the very core' or 'the only purpose' of her employment with the Times, unlike [the attorney's] provision of legal services for his N.Y.S.2d Id. at Id. at Id. at Id. at Horn, 760 N.Y.S.2d at Id at Id. at 383.

18 QUINNIPIAC HEALTH LAW [Vol. 8:161 firm's clients." 97 The absence of "common professional enterprise" between the physician and her employer, the newspaper, was a very important factor for the court, which militated against a finding of an ethics-based public policy claim. 9 8 As to the ethical principles cited by the plaintiff physician, the court declared them to be "not central" to the conduct of her medical practice on behalf of her employer. 99 The court, referring again to the legal profession precedent, explained that for the provision of the code of ethics of a profession to be regarded as a source of public policy, it must rise to the level of "a rule so fundamental and essential to the parties' shared professional enterprise that its- implication as a term in their employment agreement aided and furthered the agreement's central purpose." 1 0 Another significant, and oft-cited, code of ethics-public policy decision is the New Jersey Supreme Court case of Pierce v. Ortho Pharmaceutical Corporation. 1 ' The case involved a physician, employed in research by a pharmaceutical company, who disagreed with her supervisor's decision to continue research on a particular drug. The physician, it is important to note, did not contend that the drug was harmful, but rather "controversial," and that she could not continue with the research due to the controversy.1 2 The drug had not yet been submitted to the FDA for approval and before human testing could commence, FDA approval had to be obtained. 0 3 The physician was reassigned to a different project, which she construed as a demotion and, as a result, she resigned and sued for wrongful discharge. 0 4 The physician contended that her discharge violated public policy, and specifically that by continuing to perform research on the drug, she would have been compelled to violate professional medical ethics expressed in the Hippocratic Oath. 0 5 The physician pointed to a part of the oath that reads "I will prescribe regimen for the good of my patients according to my ability and 97 Id. 98 lid at Horn, 760 N.Y.S.2d at d. at A.2d Id. at Id Id. at Id. at 513.

19 20051 EMPLOYMENT-AT-WILL my judgment and never to do harm to anyone." ' 6 As to the general public policy claim, the court ruled against the physician, stating that "[a]s a matter of law, there is no public policy against conducting research on drugs that may be controversial, but potentially beneficial to mankind, particularly where continuation of the research is subject to approval of the FDA." 10' 7 The court also rejected the physician's Hippocratic oath argument, stating "[c]learly, the general language of the oath does not prohibit specifically research that does not involve tests on humans and that cannot lead to such tests without government approval." 108 What is significant about the case is the court's pronouncement that "[in certain instances, a professional code of ethics may contain an expression of public policy."' 19 Yet, the court counseled that "[h]owever, not all such sources express a clear mandate of public policy. For example, a code of ethics designed to serve only the interests of the profession or an administrative regulation concerned with technical matters probably would not be sufficient." 10 The court noted that in the case at bar the physician did not rely on or allege any other standards of the profession's code of ethics aside from the oath which the court decreed as too general to support a public policy claim. 1 " 1 The dissent in the case concurred with the majority opinion that the codes of ethics of a profession could form the basis for a public policy claim, but argued that the physician should have been afforded an opportunity to sustain her case with more specific ethical code sections The foremost nursing, public policy, code of ethics case, is the New Jersey case of Warthen v. Toms River Community Hospital," 3 where the Supreme Court of New Jersey had the opportunity to apply its holding in the aforementioned Pierce decision in the context of a nursing public policy case. The court again underscored that "[i ] n certain instances, a professional code of eth- 106 Pierce, 417 A.2d at Id. at Id. at, Id. at Id 11 Pierce, 417 A.2d at Id. at A.2d 229.

20 QUINNIPIAC HEALTH LAW [Vol. 8:161 ics may contain an expression of public policy." 1' 14 The Warthen case will be examined at length in the next section to this article which specifically deals with nursing public policy case law. Although not a health care provider case per se, the Colorado Supreme Court decision in Rocky Mountain Hospital and Medical Service v. Mariani 15 emerges as an important public policy-code of ethics decision. Although the employee in the case was a CPA, the employer in the case was a hospital. The court, moreover, cited the Pierce decision with approval in ruling that the employee established an initial case for wrongful discharge on public policy grounds for claiming that she was fired for refusing to falsify accounting information regarding a proposed merger between her employer and other health insurance providers.' Significantly, the court ruled that a code of ethics of a 6 profession, to wit, the accounting profession's Rules of Professional Conduct, can constitute a source of public policy for the purposes of a wrongful discharge cause of action The court, however, did place certain conditions for the utilization of a non-legislative code of ethics to qualify as a source for public policy: [T~he ethical provision must be designed to serve the interests of the public rather than the interests of the profession. The provision must not concern merely technical matters or administrative regulations. In addition, the provision must provide a clear mandate to act or not to act in a particular way. Finally, the viability of ethical codes as a source for public policy must depend on a balancing between the public interest served by the professional code and the need of an employer to make legitimate business decisions... [W]e emphasize that any public policy must serve the public interest and be sufficiently concrete to notify employers and employees of the behavior it 8 requires. Particularly noteworthy in the case was the judicial finding that the rule in the accountant's professional conduct code entitled "Integrity and Objectivity," which forbids the knowing misrepre- 114 Id. at P.2d Id. at Id. at Id

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