The Importance of the Exceptions to our At-Will Employment Rule
This is especially true of workers in facilities caring for the vulnerable.
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Posted March 2023Mississippi has followed the employment-at-will rule since 1858. In a nutshell, the rule holds that a contract of employment for an indefinite period may be terminated at any time at the will of either party with or without justification. In Shaw v. Burchfield, 481 So. 2d 247 (Miss. 1985), the Court recognized that “an employee may be discharged at the employer’s will for good reason, bad reason, or no reason at all, excepting only reasons independently declared legally impermissible.” Id. at 253–54
Congress has enacted federal protections such as the Age Discrimination in Employment Act, Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and 42 USC § 1981. However, these and other federal statutory protections do not provide a basis for state law wrongful discharge claims. See, e.g., Spiers v. Oak Grove Credit, 328 So. 3d 645, 656 (Miss. 2021) (recognizing terminations motivated by sex and age discrimination have already been “independently declared legally impermissible” under Title VII and the ADEA and therefore do not constitute viable bases to challenge the employment-at-will rule under Mississippi law).
There were no state common law exceptions to the at-will rule until the Mississippi Supreme Court handed down McArn v. Allied Bruce-Terminix Co., 626 So. 2d 603, 607 (Miss. 1993). In McArn, the Court established a common-law tort of retaliatory discharge as an exception to the at-will employment doctrine. Writing for the Court, Justice Michael Sullivan held:
We are of the opinion that there should be in at least two circumstances, a narrow public policy exception to the employment at will doctrine and this should be so whether there is a written contract or not: (1) an employee who refuses to participatein an illegal act…shall not be barred by the common law rule of employment at will from bringing an action in tort for damages against his employer; (2) an employee who is discharged for reporting illegal acts of his employer to the employer or anyone else is not barred by the employment at will doctrine from bringing action in tort for damages against his employer. To this limited extent this Court declares these public policy exceptions to the age old common law rule of employment at will. These exceptions apply even where there is “privately made law” governing the employment relationship, where the illegal activity either declined by the employee or reported by him affects third parties among the general public, though they are not parties to the lawsuit.
We therefore reverse the directed verdict granted to Allied–Bruce Terminix, Inc., and remand this case for a determination of whether or not McArn was actually discharged for a refusal to commit deceptive, fraudulent or illegal actions against the clients of Terminix or for reporting same.
Id. at 607. It is noteworthy that the Court remanded the case for the jury to determine whether McArn was fired for refusing to commit “deceptive, fraudulent or illegal actions.” Id. (emphasis added). The Court has since clarified that the exception is only available to employees who report or refuse to engage in criminal conduct. “The McArn exceptions only apply where the activity complained of is actually illegal: “the acts complained of [must] warrant the imposition of criminal penalties, as opposed to mere civil penalties.” Hammons v. Fleetwood Homes of Miss. Inc., 907 So. 2d 357, 360 (Miss. Ct. App. 2004).
The Mississippi Supreme Court recognizes that termination in retaliation for reporting a co-worker’s illegal conduct can be a sufficient basis for a wrongful termination claim, as long as it relates to the employer’s business. See DeCarlo v. Bonus Stores, Inc., 989 So. 2d 351, 357 (Miss. 2008)(recognizing that “[d]ischarge in retaliation for an employee’s good faith effort to protect the employer from wrongdoing constitutes an independent tort and may support punitive damages”) (quoting Willard v. Paracelsus Health Care Corp., 681 So. 2d 539, 543 (Miss. 1996)).
This rule is especially important in the context of employees who report illegal conduct of co-workers in long-term care facilities. In Community Care Center of Aberdeen v. Barrentine, 160 So. 3d 216 (Miss. 2015), the Plaintiff alleged he was wrongfully terminated under the McArn exception to the employment at will rule when his nursing home employer fired him for reporting patient abuse. Recognizing that wrongful discharge claims under McArn sound in tort, the Court held that a “McArn claim alleging wrongful discharge in violation of public policy is based on an employer’s duty not to thwart the public interest by terminating employees for speaking the truth.” Id. at 220.
Additionally, the Mississippi Supreme Court held that where the Mississippi Legislature has “independently declared” a basis for a wrongful termination claim, the claim is not barred by the at-will employment rule, even if the case did not otherwise meet the narrow public policy exceptions pronounced in McArn and its progeny. See Swindol v. Aurora Sciences Flight Corp., 194 So. 3d 847 (Miss. 2016) (on certified question from the Fifth Circuit, at-will employment rule does not bar wrongful discharge claim where employee stored his firearm in a locked vehicle on company property consistent with Miss. Code Ann. § 45-9-55).
The Mississippi Legislature has independently declared that termination of a care facility worker for reporting abuse or neglect is legally impermissible. The Mississippi Vulnerable Persons Act, Miss. Code Ann. § 43-47-37 (2013), provides that any person working at a care facility such as a nursing home, hospital, long-term care facility, hospice or home health agency, who has knowledge of or reasonable cause to believe that a patient or resident of a care facility has been the victim of abuse, neglect or exploitation must immediately report the abuse, neglect or exploitation. § 43-47-37(1). A care facility is required to make a report orally or telephonically within 24 hours to the State Department of Health (MSDH) and the Attorney General’s office. The care facility must then make a written report to the MSDH and AG’s office within 72 hours. The statute goes on to provide the following:
No person shall terminate from employment, demote, reject for promotion or otherwise sanction, punish or retaliate against any individual who, in good faith, makes a report as provided in this section or who testifies in any official proceeding regarding matters arising out of this section.
Miss. Code Ann. § 43-47-37(5)(b). This statute explicitly declares that terminating or retaliating against an employee for reporting abuse, neglect or exploitation of a vulnerable person is illegal. Moreover, the Vulnerable Persons Act imposes criminal penalties for failing to report or attempting to induce another, by threat or otherwise, to fail to make a report of abuse, neglect or exploitation of a vulnerable person. §43-47-37(7).
Thus, an employee’s case against a care facility alleging wrongful termination for reporting patient abuse or neglect is actionable under both the public policy exception of McArn and the explicit language of §43-47-37(5)(b) declaring such retaliatory conduct to be legally impermissible. Recently, co-counsel Josh Ginn and I successfully represented a gentleman who was fired from a long-term care facility for good faith reporting of abuse and neglect. We pursued the case under both McArn and § 43-47-37. After hearing the evidence, the trial Court found that our client had been wrongfully discharged and awarded damages for lost wages and emotional distress.
The McArn exceptions to the employment-at-will rule could find no better application than in situations where an employee reports abuse or neglect of a vulnerable person. The common law absolutely should protect workers from retaliatory discharge under these circumstances. That the Legislature has codified the importance of that public policy in the Vulnerable Persons Act makes it clear that our state protects the vulnerable and will not stand for retaliatory treatment of workers in care facilities who in good faith report abuse or neglect.
Hawkins regularly represents individuals and families in nursing home, medical malpractice and employment cases. He also represents doctors, nurses and CNAs in employment and licensure matters.
- Perry v. Sears, Roebuck & Co., 508 So. 2d 1086, 1088 (Miss. 1987).
- Practice Tip: Both Title VII and Section 1981 outlaw intentional race discrimination in employment contracts. However, workers pursuing 1981 claims do not have to first exhaust administrative remedies at the EEOC or a state agency, a key distinction from Title VII. The statute of limitations is four years under Section 1981 and – unlike Title VII – there is no damages cap. So, for race discrimination claims in the employment context, lawyers should consider bringing their case under 42 USC §1981.