Category Personnel/Employment
Title Rights of At-Will Employees Are Limited
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Preview Rights of At-Will Employees Are Limited
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Rights of At-Will Employees Are Limited

For about 13 years, Joan Grinzi worked as a case manager for San Diego Hospice Corporation (Hospice), a private corporation. During her employment, Grinzi received a promotion, commendations, and raises. Her employer never warned or disciplined her during that time. In early 2002, she was fired. At first, her employer said that her dismissal was due to her membership in Women's Garden Circle, an investment group that Hospice believed to be an illegal pyramid scheme. A few days later, Hospice told her she was terminated for wrongful use of its e-mail system. Grinzi alleged in a lawsuit that this second explanation was a pretext and that the real reason for her termination was her lawful conduct at the Women's Garden Circle during nonworking hours.

Grinzi sued Hospice in a California court, alleging that she had undergone wrongful termination in violation of public policy and that Hospice had violated her free speech rights. The court ruled in favor of Hospice, so Grinzi appealed her case to the California Court of Appeals, which upheld the lower court's ruling.

The appellate court first analyzed Grinzi's claim of wrongful termination in violation of public policy. The court acknowledged that at-will employment is "terminable at any time by either party upon notice. Absent a contract overcoming this presumption, 'the employee can be fired with or without good cause.' ... The employer's right to discharge at-will employees is, however, limited by public policy.... Although an at-will employee may be discharged 'for no reason, or for an arbitrary or irrational reason, there can be no right to terminate for an unlawful reason or a purpose that contravenes fundamental public policy.'" The court then recognized four sources of public policy: "the employee (1) refused to violate a statute; (2) performed a statutory obligation; (3) exercised a constitutional or statutory right or privilege; or (4) reported a statutory violation for te public's benefit."

The court then analyzed Grinzi's claim that Hospice violated her exercise of free speech. The court found that generally "no protection or redress is provided by the First Amendment itself against 'a private corporation or person who seeks to abridge the free expression or others.'" In one court citation that the judges used to reach this conclusion, a court found that the Constitution-mandated public policy "is that the power of government, not private individuals, be restricted." In another case citation, a court ruled that there was not a claim for wrongful discharge since a private entity defendant "is legally incapable of violating anyone's First Amendment rights." An exception is made when a state legislature, such as Connecticut's,  "passed legislation specifically creating a cause of action against private employers for discharges based on the employee's exercise of First Amendment free speech rights." Very few states have such a legislative provision.

Joan Grinzi v. San Diego Hospice Corporation
Court of Appeal of California, Fourth Appellate District, Division One
120 Cal. App 4th 72; 14 Cal. Rptr. 3d 893; 2004 Cal. App.

Bottom line: Although employers have a great deal of latitude regarding termination of at-will employees, in the states that recognize at-will employment, this case illustrates that it is important to avoid violation of public policy or of statutes when terminating someone. In recent years, state legislatures have passed a number of laws regarding employees' off duty use of tobacco products or employees' use of lawful products or participation in lawful activities. As of early 2003, the following states prohibited employers from discriminating against employees who use tobacco: Arizona, Connecticut, Indiana, Kentucky, Louisiana, Maine, Mississippi, Missouri, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Virginia, Washington, D.C., and Wyoming. In the following states, employers are prohibited from disciplining employees for their use of "lawful products" (for example, tobacco products or alcohol) or for their participation in "lawful activities" (for examples, smoking, drinking, or gambling) on their own time: Colorado, Illinois, Minnesota, Montana, Nevada, New York, North Carolina, Oregon, and Wisconsin.

Christian employers can adopt lifestyle statements and make certain requirements of employees if those requirements are effectively spelled out to their employees and are documented as spiritual issues. Christian employers have more latitude than secular employers in dictating what is an acceptable lifestyle. Title VII of the Civil Rights Act of 1964 permits a Christian school to make hiring and other personnel decisions on the basis of religion. For more information, check this issue's in-depth article entitled "Your School May Discriminate on a Religious Basis in Personnel Decisions." Employees must be put "on notice" for various lawful behaviors that could cause them to be disciplined or terminated by your church or school.

Here are four ways to help avoid trouble when disciplining an employee for off-duty conduct: (1) Clearly communicate lifestyle expectations in your written employment materials. (2) Focus on the employee's Christian testimony and that of the school's when dealing with off-duty conduct that may affect job performance. (3) Check your state's rules and make sure you obtain legal advice before firing or disciplining a worker for his or her off-duty activity. (4) Be evenhanded. Apply the same level of scrutiny across the board, making sure you are consistent in disciplinary actions. You can't suspend one employee for off-work behavior and then ignore another employee under similar circumstances.

LLU 18.3

Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Laws vary by jurisdiction, and the specific application of laws to particular facts requires the advice of an attorney.

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