Resolving the Ambiguity--a Post-trosper Guidebook for Courts and Employers: Trosper v. Bag `n Save, 273 Neb. 855, 734 N.w.2d 704 (2007)

• Publication year: 2021

87 Nebraska L. Rev. 270. Resolving the Ambiguity--A post-Trosper Guidebook for Courts and Employers: Trosper v. Bag `N Save, 273 Neb. 855, 734 N.W.2d 704 (2007)

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Note(fn*)

Resolving the Ambiguity--A post-Trosper Guidebook for Courts and Employers: Trosper v. Bag `N Save, 273 Neb. 855, 734 N.W.2d 704 (2007)

TABLE OF CONTENTS

I. Introduction ....................................................... 271

II. Background ........................................................ 273 A. Nebraska's Public Policy Exception to the At-Will Employment Doctrine ............................................ 273 B. Trosper v. Bag `N Save ............................ 274 1. Facts ....................................................... 274 2. Majority and Concurring Opinions ............................ 275 3. Dissenting Opinion .......................................... 277 C. Other States' Case Law Addressed in Trosper ....... 278 1. Illinois: Zimmerman v. Buchheit of Sparta, Inc. ................................................. 279 2. Utah: Touchard v. La-Z-Boy Inc. ................ 281

III. Analysis ......................................................... 283 A. Who Decides--Courts or Legislatures ........................... 283 B. Whether a Private Right of Action for Retaliatory Demotion is Needed When a Private Right of Action for Retaliatory Discharge is Already Recognized ............... 285

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C. Conceptualizing Retaliatory Demotion in a Way that Minimizes Ambiguity for Courts and Employers .................. 287 1. A Guidebook for Courts ..................................... 287 2. A Guidebook for Employers .................................. 294

IV. Conclusion ........................................................ 298

I. INTRODUCTION

Designed to promote economic and judicial efficiency, Nebraska's at-will employment doctrine is rooted in the notion that employers (rather than courts) are best positioned to manage the workplace.(fn1) Yet application of a rule that enables employers to terminate employees at any time for any reason--absent constitutional, statutory, or contractual limitations--can lead to harsh results.(fn2) Given the imbalance in power and resources between employers and employees, the need to balance efficiency with fairness manifests itself in common law exceptions to the at-will employment doctrine.(fn3) Most frequent

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among these is a common law exception that forbids employers from terminating employees when doing so clearly violates public policy.(fn4)

In Nebraska and elsewhere, courts engage in an efficiency versus fairness tug-of-war to determine the proper scope of the public policy exception. Where the exception is widened, theory suggests that a more employee-friendly workplace is achieved at the expense of economic and judicial efficiency as employers and courts become increasingly entangled in litigating workplace disputes.(fn5) Where the exception is narrow, theory suggests that employers are empowered to manage employees as they see fit. A more responsive and productive workforce is achieved resulting in increased overall economic efficiency, but employees have less legal protection from employers. In addition to debating the merits of the public policy exception, courts struggle with whether such policy concerns should be left entirely to the state legislature.(fn6)

In Trosper v. Bag `N Save,(fn7) the Nebraska Supreme Court addressed whether an employee's demotion for seeking compensation rightfully owed him under the State's workers' compensation laws falls within the State's public policy exception to the at-will employment doctrine. Already having recognized a public policy exception when an employee is discharged for seeking compensation under the State's workers' compensation laws,(fn8) the specific issue facing the Court was whether retaliatory demotion should be protected to the same extent as retaliatory discharge.(fn9)

Part II of this Note provides the background law relevant to Trosper. Section A offers a brief synopsis on Nebraska's at-will employment doctrine and application of the public policy exception. Section B summarizes the majority, concurring, and dissenting opinions in Trosper. Section C addresses case law from other jurisdictions that the Court extensively relied on in Trosper. The crux of this Note is the Analysis contained in Part III, which is broken into two closely related sections. Section A contends that Trosper reached the proper conclusion by holding that a private right of action for retaliatory demotion is necessary when a private right of action for retaliatory discharge has already been recognized, but recognizes that doing so inserts ambiguity into the law. Section B seeks to resolve that ambiguity by providing a guidebook for courts and employers dealing with the nebulous

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concept of retaliatory demotion. Part IV offers some concluding thoughts on how courts and employers should address the post-Trosper ambiguity.

II. BACKGROUND

A. Nebraska's Public Policy Exception to the At-Will Employment Doctrine

Nebraska's clear and frequently cited at-will employment doctrine provides that "unless constitutionally, statutorily, or contractually prohibited, an employer, without incurring liability, may terminate an at-will employee at any time with or without reason."(fn10) Though such language allows employers to manage their workforce without judicial interference, an employer's ability to hire and fire employees is not without limitation. To "temper . . . harsh and unjust results from the rigid application" of the rule,(fn11) Nebraska's common law recognizes a public policy exception to the at-will employment doctrine, under which an employee can claim damages for wrongful discharge when the court holds that the motivation for the firing clearly contravenes public policy.(fn12) As a way of keeping the public policy exception within a clear and manageable standard, Nebraska recognizes a mandate of public policy only where criminal sanctions or explicit statutory directives exist, or legislative intent is easily ascertainable.(fn13)

Nebraska's Supreme Court first applied the public policy exception in Ambroz v. Cornhusker Square Ltd.,(fn14) where the plaintiff-employee was discharged for refusing the defendant-employer's demand to submit to a polygraph examination. Finding the requisite public policy expressed in NEB. REV. STAT. § 81-1932 (Reissue 1981), which provided that "[n]o employer or prospective employer may require as a condition of employment or as a condition for continued employment that a person submit to a truth and deception examination," the Court

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held that the discharge was a "violation of a clear, statutorily mandated public policy."(fn15)

The background case most relevant to Trosper--Jackson v. Morris Communications(fn16)--involved an employee who was discharged after filing a workers' compensation claim. The Jackson Court noted that the Nebraska Workers' Compensation Act (NWCA) "does not specifically prohibit an employer from discharging an employee for filing a claim, nor does it specifically make it a crime for an employer to do so."(fn17) However, the Court noted that other jurisdictions recognize an exception, even in the absence of a specific statutory prohibition, based on the policy merits of promoting economic security for injured employees and their dependents.(fn18) Similarly, the Court recognized that it has consistently given the NWCA a "liberal construction to `carry out justly the spirit of the [NWCA].'"(fn19) Because "a rule which allows fear of retaliation for the filing of a claim undermines that policy,"(fn20) the Court held that a public policy exception to Nebraska's at-will employment doctrine applies to allow a cause of action for retaliatory discharge when an employee is fired for seeking workers' compensation.(fn21)

B. Trosper v. Bag `N Save

1.Facts

While employed as a "deli manager" for Bag `N Save, Kimberlee Trosper suffered a work-related injury that required medical treatment. After reporting her injury to Bag `N Save and filing for compensation under the NWCA, the company demoted Trosper from "deli manager" to "deli clerk." Bag `N Save also reduced Trosper's annual salary from $30,100 to $22,500.(fn22) Though Trosper was demoted rather than discharged, Trosper brought an action against her employer, alleging that Bag `N Save acted in a retaliatory manner con

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trary to Jackson.(fn23) Bag `N Save moved to dismiss the action, alleging that the complaint failed to state a claim upon which relief could be granted.(fn24) Because Nebraska law did not recognize a private cause of action for retaliatory demotion, the trial court sustained the motion and dismissed the complaint. Trosper appealed, arguing that demotion, like discharge, frustrated the public policy underlying the NWCA.(fn25)

2.Majority and Concurring Opinions

Using Jackson as a framework for its analysis, the Court noted that when it created a private remedy for employees who had been discharged in retaliation for seeking workers' compensation, "[the Court] reasoned that `a rule which allows fear of retaliation for the filing of a claim undermines [the important public policy of the NWCA].' And [the Court] stated that `the employee must be able to exercise his right in an unfettered fashion without being subject to reprisal.'"(fn26) Accordingly, the Court concluded that allowing employers to demote an employee for filing a workers' compensation claim would circumvent the policy in Jackson and thus a private remedy for retaliatory demotion was required:

An employee's right to be free from retaliatory demotion for filing a worker's compensation claim is married to the right to be free from discharge. Demotion, like termination, coercively affects an employee's exercise of his or

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