Exceptions To the At-Will Employment Doctrine
| Jurisdiction | Maryland |
III. EXCEPTIONS TO THE AT-WILL EMPLOYMENT DOCTRINE
Apart from the express employment contract, Maryland recognizes two major exceptions to the at-will employment relationship—the employee handbook exception and the public policy exception.
A. Contractual Obligations Created by Personnel Policies or Handbooks
Maryland recognizes a limited exception to the doctrine of employment at-will whereby certain personnel policies or statements in materials disseminated to employees may create implied contractual obligations. The exception applies to policies that limit the employer's discretion to terminate an indefinite employment or that establish procedures for termination.42 Notable examples of procedures that may result in contractual obligations are mandatory probationary periods, opportunities for rehabilitation, or required written warnings prior to termination.43 Nonetheless, to create a contractual obligation, policy language must go beyond a general statement and instead promise a specific and definite benefit.44 Additionally, to constitute an implied contractual obligation, an employee must have had knowledge of the policy when he or she began working or continued to work for the employer.45
Where a personnel policy becomes a contractual obligation, the employer is bound only to follow the policy.46 No rights beyond those created by the policy are created.47 If an employer violates its own policy, the employer may face an action for breach of contract. To state a claim for breach of contract, a plaintiff must establish: (1) the existence of a policy that mandates a specific procedure as a necessary condition to discharge, and such policy is capable of objective application; (2) the mandatory policy was either part of the employee's contract or communicated to the employee; (3) the employee either continued or began working for the employer with knowledge of the policy; (4) the employee was discharged without complying with the policy; and (5) the employee has suffered damages as a result.48 In such an action, the finder of fact's inquiry is limited to whether the employer's own policies were followed, and, if those policies require that the employer act in good faith, that the employer did so.49
An employer may avoid creating contractual obligations through disclaimers.50 Disclaimers negate policy statements that might otherwise appear to limit the employer's ability to terminate employment at-will. An effective disclaimer precludes an employee from reasonably relying upon a policy statement, and thus vitiates any binding force that the statement may have.51 The clarity of the disclaimer impacts its effectiveness, and courts will evaluate both the language of the disclaimer and the circumstances surrounding its dissemination when considering its clarity.52 Where a disclaimer stated that the employment relationship was "predicated" on an at-will basis, the disclaimer was ineffective.53 The term "predicated" did not preclude a change to the relationship.54
As to the circumstances of a disclaimer's dissemination, the location of the disclaimer relative to the policy language is important, as is the employer's treatment of handbook revisions.55 Effective disclaimers, therefore, not only explicitly state that the employer has the right to terminate the employment relationship at any time, without cause, but they are also conspicuously displayed, typically through the use of typographical signals such as italics or bolding, and are placed so that employees are likely to notice them.56
Even if an employee has not personally read a disclaimer, it will be effective if it has been widely distributed.57 Provided it is conspicuous and widely distributed, a disclaimer does not need to be included in a handbook or contract.58 Disclaimers contained on an employment application have been deemed to be effective.59 Additionally, appropriately distributed and clear disclaimers added after an employee begins employment have been held to be effective.60 Specific guidelines and examples of effective disclaimers are included later in this chapter.
B. The Public Policy Exception
The second exception to the at-will employment doctrine is the public policy exception. Maryland recognizes the tort of wrongful or abusive discharge for a termination that violates public policy.61 This action provides a remedy when an employee has been terminated in clear contravention of public policy and there is no statutory remedy available to address this wrong.62 Public policy is that principle of the law that holds that no person can lawfully do that which has a tendency to be injurious to the public or against the public good.63
The courts have adopted a narrow definition of public policy, so the public policy exception is available in limited circumstances. In order to establish a claim for wrongful discharge, a plaintiff must show by a preponderance of the evidence that: (1) the employee was discharged;64 (2) the discharge violated a clear mandate of public policy; and (3) there was a nexus between the employee's conduct and the employer's decision to terminate the employee.65
In a jury trial, the court initially decides whether a sufficiently clear public policy violation has been identified to allow the case to go to the jury. After that, the jury decides what the employer's motivation was for the firing.
The Maryland Pattern Jury Instructions lists a wrongful discharge claim in the category of negligence, and the prescribed elements differ slightly from those listed in the case law. Under the pattern jury instructions, the reason for termination must be in violation of a clear mandate of public policy.66 Regardless of the wording, there must be some connection between the clear mandate and the termination.
1. Clear mandate of public policy
The public policy serving as a basis for a wrongful discharge action must be clearly mandated.67 Maryland law generally recognizes a violation of a clear mandate of public policy to occur when an employee is discharged either after refusing to act in a manner that violates the law or after performing a duty required by statute.68 Courts are reluctant to create policy and, as such, will not recognize a mandate of public policy in the absence of some clear action on behalf of the legislature.69 As such, mere disputes between an employer and an employee as to the conduct of business, even where the employee may subjectively believe he or she has been asked to act in violation of some public policy mandate, will not sustain a cause of action based upon this theory.70
The most clear-cut cases exist where an employee has committed an act or omission required by law and is terminated as a result. For example, where a teacher at a program for at-risk youth alleged she had been discharged because she sent a letter to the police alleging that the program's policies placed children at risk of abuse, she was able to maintain a claim for wrongful discharge because Maryland law required educators to report suspected child abuse to the appropriate law enforcement agency.71 In another case, an apartment manager stated a violation of clearly mandated public policy where she was terminated for refusing to comply with her employer's instructions to enter tenants' apartments and rummage through their personal effects to gather information that could be used in collecting overdue rent.72 The public policy mandated therein was the protection of the tenant's constitutional right to privacy.73
A wrongful discharge action is also available where an employee has been discharged in retaliation for attempting to vindicate a legal right in court, for which there is no statutory protection against retaliation. For example, although statutory regulations prohibiting gender discrimination exempt small employers for administrative reasons, there is still a clear policy mandate against discrimination.74 Therefore, a cause of action for the common law tort of abusive discharge exists even in the absence of statutory regulation.75
Public policy is very narrowly defined. Indeed, in Bleich, the plaintiff alleged that her discharge had also violated her constitutionally protected free speech rights.76 The Bleich court determined that because the constitutional protection of free speech did not apply to private actors, no claim existed on this basis.77 In another case, a security supervisor was terminated after he investigated suspected criminal activity of a store manager and reported his suspicions to his superiors.78 The supervisor's wrongful discharge claim was not actionable, however, because the Maryland laws protecting employees who reported suspected illegality to external authorities did not protect employees who reported illegality internally.79 Where the statute does require internal reporting prior to reporting wrongdoing to an external body, however, employees who were terminated after reporting statutorily prohibited conduct internally only were permitted to bring wrongful discharge claims on public policy grounds.80
Assertions that a termination violated a vague public policy interest, no matter how compelling, have been unsuccessful in the absence of a specific statutory or regulatory basis.81 For example, the Maryland Court of Appeals determined that terminating an employee who requested legal counsel prior to signing an employer's negative job performance warning did not constitute a violation of public policy.82 In Porterfield, the court held that Maryland law favors access to counsel when making important decisions, but no sufficiently clear policy mandate exists to support a wrongful discharge action.83 The public policy exception does not disturb the general principle that an employer's decisions regarding internal management will not be evaluated by the courts. There is no public policy mandate that employers have a good reason for terminating their employees.84
2. Nexus between discharge and public policy
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