Lessons From Winning Cases

Two Nurses Who Spoke Up, Lost Their Jobs, and Sued

Carolyn Buppert, MSN, JD

Disclosures

April 08, 2016

In This Article

Termination and 'At Will' Employment

Nurses who sue for wrongful termination are by no means assured of winning. It is a long-standing common law principle in every state but Montana that employees work "at will," meaning "at the will of the employer." An employer can terminate an employee for cause or without cause. So, if an employer doesn't need a reason to fire an employee, how does an employee win a case for "wrongful termination"?

There are exceptions to the doctrine of "at will" employment, and these vary from state to state. One exception precludes an employer from firing an employee in retaliation for reporting a violation of public policy. Another precludes an employer from firing someone solely on the basis of the employee's race, gender, religion, national origin, physical or mental disability, or age. And, there are prohibitions under federal and state law against firing someone solely for exercising their right to free speech.

Public policy supports employees who speak up to protect consumers, customers, and patients. In Landin's case, Allweil argued that public policy supports protection of patient safety and also calls for a nurse to report a patient safety problem. Allweil cited documents from the American Nurses Association (ANA) code of ethics, which says that nurses have a professional responsibility to protect patient safety.

The tricky part—and this is where an experienced attorney is helpful—is understanding the ins and outs of state laws that describe the exceptions to "at will" employment. If an employee reports a patient safety problem and/or is a member of a protected class (older, or a minority), the employer will probably try to prove that the employee was fired for another reason—poor performance, for example. A court will weigh the evidence and decide whether the public policy at issue is more important than upholding the doctrine of at-will employment.

If the employee has had poor performance evaluations or witnesses testify that the employee was not attentive or competent, then the employer may be able to avoid paying damages. In that case, the employee is left with nothing but legal bills for the attorney's expenses, and the attorney is left without compensation for his or her work on the case. But if the employee has had good evaluations for many years, and suddenly—just after the employee identified a problem—the evaluations turn poor and the employee is terminated, then the firing is suspicious for retaliation.

Whistleblowers, Beware

In some states, nurses and other employees who report a violation of law or public policy may file for job protection and/or damages under state whistleblower protection acts. Those who sue under a state's whistleblower protection act must follow the dictates of the act very closely, if they hope to win their case. Most nurses, when they see and report a problem, aren't focusing on the details of whistleblower laws. So some nurses find that they can't win a case because they haven't followed the exact dictates of the whistleblower laws.

The requirements of whistleblower laws vary from state to state. Some require that an employee make a report to an outside agency and follow a specific process after doing so. Employers defend whistleblower lawsuits by asserting that the nurse wasn't fired for blowing the whistle, but for poor performance. Or, the employer may argue that the nurse isn't eligible for whistleblower protection because the nurse didn't meet the law's specific requirements. In Landin's case, the employer defended by criticizing Landin's nursing performance and also argued that he hadn't met the state's whistleblower requirements.

Boly sued for age discrimination as well as wrongful termination in violation of public policy. In an age discrimination case, the employee must prove that the termination was due to age, not other factors. Employers know this, so they must try to make sure that there are records of infractions to support the firing. In Boly's case, she was cited for infractions or missed quotas that other nurses were guilty of, yet only Boly was cited.

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