Professional Ethics &
Wrongful Discharge

Copyright 2000 by Ronald B. Standler


Table of Contents

Introduction
at-will Employment
              sources of public policy
              judicial reluctance
Learned Professionals & Ethics
              1. attorneys
              2. physicians
              3. licensed professional engineers
              4. scientists
              5. professors
              6. librarians
              recognition of professional autonomy
              practical examples
Whistle-Blower statutes
              New Jersey "Conscientious Employee Protection Act"
Case Law
              legal basis of ethical duty
              1. attorneys
              2. physicians and nurses
              3. licensed professional engineers
              4. scientists
              reporting safety violations
Political expression not protected
My Proposal
Links to other web sites
Conclusion

Introduction

In my essay on academic freedom in the USA, I argued that the legal concept of academic freedom in the USA was mostly an illusion. The previous essay in this series, on freedom of speech of government employees, discussed U.S. Supreme Court opinions on the right of government employees to criticize their employer, under the First Amendment to the U.S. Constitution, then examined how lower courts have applied the holdings of these Supreme Court cases to situations involving university professors at state colleges.

This essay reviews cases under state law involving wrongful termination of employment in the USA, because an employee chose to follow ethical principles of the employee's profession. Unlike employment law based on the Bill of Rights in the U.S. Constitution, which only applies to government employees, the principles in this essay are applicable to all employees, even employees of for-profit and non-profit organizations.

This essay is intended only to present general information about an interesting topic in law and is not legal advice for your specific problem. See my disclaimer.

In this essay, I do not cite the cases in which a company terminated an employee who chose to follow high ethical principles, and in which the company was able to escape legal liability for that termination by using the doctrine of "at-will employment". There is no need to cite those cases, because: Because of my intentional lack of citations in this essay to the mainstream law of at-will employment, a reader might obtain the mistaken impression that the law in this essay is mainstream law. So, I explicitly caution employees that:
  1. Employers in the USA can, and frequently do, terminate employment of employees who have "too much" integrity or ethics.

  2. Protection against wrongful termination of employment is a developing area of law in the USA, which only rarely protects an employee.

I list the cases in chronological order in the citations in this essay, so the reader can easily follow the historical development of a national phenomenon. If I were writing a legal brief, I would use the conventional citation order given in the Bluebook.

At the end of this essay, I urge readers to contact their state legislators and push for stronger state statutes in this area.

at-will Employment

Fundamentally, an at-will employee in the USA can be terminated at any time, and for any reason – or no reason at all – and the courts will not intervene to protect the ex-employee from allegedly unfair treatment by the employer.

Recognizing that this rule of law is too harsh, courts in the 1960s began to develop an exception to the absolute right of an employer to terminate an at-will employee, in cases where the employer violated a clearly expressed public policy. The process of developing the public-policy exception to at-will employment accelerated during the 1980s and 1990s, not only with judicial recognition of public policy, but also legislatures passing statutes providing whistleblowers with protection from retaliatory discharge. I have posted a companion essay that briefly sketches the history of the doctrine of at-will employment in the USA and criticizes this doctrine.

Some (i.e., not all) states recognize public-policy exceptions to the absolute right of the employer to discharge employees, in situations where: I emphasize that the above public-policy exceptions are not the law in every state of the USA, but do describe the law in many states of the USA. The law varies from state to state, so no terse, general description of employment law can be absolutely correct for every state in the USA.

These limited public-policy exceptions in the majority of states do not create rights of freedom of speech for learned professionals, nor do they create rights of learned professionals to uphold high ethical standards. The above public-policy exceptions are mentioned only as a foundation of the law that is discussed in the remainder of this essay.

The ex-employee can sue his former employer for "wrongful discharge" or "retaliatory discharge". Wrongful discharge is the more general term; it also includes termination of employment for reasons of gender, race, or age discrimination. Retaliatory discharge is termination of employment because of some act, or failure to act, by the employee, in which the employee upheld some principle of public policy in spite of objections by the employer.

In some states this cause of action is a tort, in other states it is a breach of contract action.

It is not necessary that the employee be discharged by the employer; it is possible that the employee can be "constructively discharged" when the employer deliberately creates an intolerably unpleasant work environment (e.g., by demotion or harassment) for the employee, who may then resign.

sources of public policy

Readers interested in the legal history of the judicial use of public policy will find a discussion in my companion essay on the history of at-will employment in the USA.

In the majority of states, judges have declared that public policy is only found in the constitution, statutes, and – sometimes – governmental regulations that implement statutes, because judges are unwilling to function as a legislature and determine which values of citizens are worth protecting. Citations to cases are found in my companion essay on the history of at-will employment in the USA.

In many states, the public-policy exceptions have been created by the legislature in statute(s) that specifically gives the ex-employee the right to sue for wrongful discharge.

In a few states (e.g., Illinois, New Jersey) public-policy exceptions have also been created by judges, as part of the common law. Citations to cases are found in my companion essay on the history of at-will employment in the USA.

judicial reluctance

I have written a detailed discussion of judicial reluctance to create broad public-policy exceptions to at-will employment. In order to shorten this long essay, I have moved this detailed discussion to my companion essay on the history of at-will employment in the USA.

Judicial reluctance to alter the absolute nature of at-will employment has restricted the availability of judicial remedies for wrongful discharge in the USA, with the consequence that prudent employees will follow the three monkey rule (i.e., hear no evil, see no evil, speak no evil) in order to avoid termination of their employment. The lack of protection for whistleblowers has resulted in damage to American society, in which wrongs — and even illegal conduct — are concealed. Just as bad, unjust or unethical decisions by management are legally protected.

As a result of judicial reluctance in this area, even in states which do permit the tort of wrongful discharge of at-will employees for public policy reasons, the tort offers little or no protection to most employees. A solution must come from the legislature, not from judges.

Learned Professionals & Ethics

In this section, I argue that learned professionals, regardless of whether employed by the government or employed by private enterprise (both for-profit and non-profit organizations), need special protection for their speech and actions.

Learned professionals (e.g., attorneys, physicians, engineers, scientists, professors) have personal ethical obligations, in addition to a duty of loyalty to their employer or client. Sometimes these personal ethical obligations collide with the desires of the employee's manager or employer.

Two cases discussed in my essay on freedom of speech showed the particular problems of learned professionals who are employees of the government:
  1. In the case of Connick v. Myers, 461 U.S. 138 (1983), I believe it is significant that Myers distributed her questionnaire only to other attorneys, not to clerical personnel. 507 F.Supp. at 754 (Finding of Fact Nr. 8).
  2. In the case of Waters v. Churchill, 511 U.S. 661 (1994), I believe it is significant that Churchill's conversation was with another nurse, not with clerical personnel.
In both of these cases, the discharged employee was not insubordinate, but only discussing matters of professional ethics with another professional.

1. attorneys

Attorneys, as learned professionals who are licensed by the state, have a number of personal obligations under the Rules of Professional Conduct that are established and enforced by each state's bar. These obligations require independent and individual professional judgments from the attorneys. In my view, this makes attorneys exempt from blindly following orders of superiors in every instance.

The American Bar Association (ABA) publishes the Model Rules of Professional Conduct, which is the basis of the official rules adopted by each state's supreme court. For example:
  1. Rule 3.3 of the ABA's Model Rules requires that the attorney "not knowingly make a false statement of material fact or law" and shall not "offer evidence that the lawyer knows to be false".
  2. Rule 5.4 of the ABA's Model Rules requires that "a lawyer shall not permit a person who recommends, employs, or pays the lawyer to ... direct or regulate the lawyer's professional judgment ...." This rule is necessary to protect the real client, even when someone else is paying for legal advice to that client.
  3. Rule 8.3 of the ABA's Model Rules requires an attorney to report to "the appropriate professional authority" any "knowledge that another attorney has committed a violation of the rules of professional conduct that raises a substantial question as to that lawyer's honesty, trustworthiness[,] or fitness as a lawyer ...."
The Rules of Professional Conduct for attorneys vary from state to state. The American Bar Association (ABA) has provided links to the Rules for attorneys in each state.

Attorneys who litigate in federal courts in the USA must obey Rule 11(b) of the Federal Rules of Civil Procedure:
By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney ... is certifying that to the best of the person's knowledge, formed after an inquiry reasonable under the circumstances, —
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law, or by a nonfrivolous argument of the extension, modification, or reversal of existing law[,] or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support, or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
In plain English, this Federal Rule requires that the attorney must first make "an inquiry reasonable under the circumstances" and then not mislead the court about either fact(s) or law. This personal obligation to be honest applies to the submission of any paper to the Court. The attorney can be fined by the court for violations of this Rule, as well as to pay the "reasonable expenses and attorney's fees" of the opposing party for responding to the violation of this Rule.

These rules, as well as many others, could bring an attorney into conflict with his/her manager. The primary duty of attorneys is to serve and benefit their clients, not to please the attorneys' managers.

2. physicians

One could easily articulate a similar view for physicians. The American Medical Association's Code of Medical Ethics is used as the basis for licensure of physicians by the states. For example, These and other matters that could easily bring a physician into conflict with his/her manager. The primary duty of physicians is to serve and benefit their patients, not to please the physicians' managers.

The AMA's Principles of Medical Ethics are posted on the Internet.

In addition to the ethical responsibilities of physicians, one could also make a similar argument for licensed nurses and licensed psychologists, but – in the interest of brevity – I do not.

3. licensed professional engineers

The National Society of Professional Engineers (NSPE) has a Code of Ethics that is used as the basis for licensure of professional engineers by the states. For example, These ethical requirements could easily bring a professional engineer into conflict with his/her manager.

The Institute of Electrical and Electronic Engineers (IEEE) has a Code of Ethics. The IEEE Code is particularly relevant to electrical engineers who are not licensed professional engineers, a situation that applies to many engineers who work in either development of new products or applied research.

The Association for Computing Machinery (ACM) has a Code of Ethics for computer programmers and others working in information technology. The IEEE Computer Society has a Software Engineering Code of Ethics that was developed jointly with the ACM.

4. scientists

One could make a similar argument for scientists, however scientists are not licensed by the government, so the relevant ethical code for scientists is promulgated only by nonprofit professional societies, not an agency of the government. As stated later in this essay, there is case law in the USA for recognizing ethical codes of professional societies.

For example, the American Chemical Society has the Chemist's Code of Conduct, which was originally published in 1965, and revised in 1994. The National Academy of Science, which is sponsored by the federal government, published in 1995 the book Responsible Conduct in Research. The American Mathematical Society has posted its Ethical Guidelines. The American Physical Society has posted its Guidelines for Professional Conduct for physicists.

5. professors

Extending legal protections to professors who follow ethics instead of orders from the administration is complicated by the absence of a governmental license to practice the profession of teaching and research in colleges (or does the fact that a professor is hired by a state college or a state university create a de facto license?). The American Association of University Professors (AAUP) Statement on Professional Ethics, written in 1966 and revised in 1987, serves as a code of conduct that is sometimes incorporated into the professor's contract, somewhat analogous to ethical rules for attorneys, physicians, and engineers. It would strengthen the analogy if professors took an oath that their fundamental duty was to teach their students in a rigorous way and to do scholarly research without regard to who might be offended. Alternatively, recognition of such a duty of professors might be a matter of custom or academic tradition, at least at major research universities (e.g., Harvard, MIT, Stanford, University of California at Berkeley, University of Michigan at Ann Arbor, etc.).

As I said in my essay on academic freedom, tenure protects senior professors from quick termination of their employment. However, untenured professors, post-doctoral research associates, instructors, and other professional personnel on the staff are all typically on an annual contract, which the college can simply refuse to renew.

6. librarians

The American Library Association has a Code of Ethics for librarians. One can easily imagine librarians getting in trouble because some people want to ban a book or magazine from the library, or impose some other kind of censorship.

summary of learned professionals

In short, I believe: require that managers of these learned professionals give some deference and respect to the individual decisions of these professionals. Anything else creates a conflict in which a professional has a choice between pleasing their manager and doing the right thing, a conflict that is too easy to resolve by pleasing their manager.

recognition of professional autonomy

It is not common that courts in the USA explicitly recognize the need for professional autonomy. The following court opinion did discuss professional autonomy, in the context of deciding whether litigation of AIDS transmitted by a blood bank should be decided under the professional standard of care or under the standard of ordinary negligence.
  It is generally accepted that professions possess a number of defining characteristics in common, the first and foremost of which is individual autonomy and responsibility. Professionals are usually granted the right to determine the details of how their work will be performed. Moreover, they rely on peers to judge the quality of their work and behavior as professionals. Closely related, and a reflection of the profession's right to determine its own conduct, is that professions generally compose and practice under codes of ethics which define rules of proper behavior.

  Other characteristics of a profession include long formal training, undertaken in formalized institutions which are established to transmit the specialized knowledge of the profession and formal recognition of expertise through licensure and certification. [citation omitted]

  It is precisely these characteristics of professional activity which have long led the courts to grant the medical profession and other professions a "preferred position" in which the accepted or customary practices of similarly trained and situated professionals are generally taken as conclusive evidence of the professional standard of care. [citation omitted]

  The nature of professional activity insures that this professional negligence standard is a fluctuating standard defined only upon a contemporaneous survey of the practices of the profession's members. The result is a standard which is comprised of the collective knowledge, training, and experience of a series of individuals exercising their independent professional responsibility and judgment and which "on the one hand, does not exact the highest degree of skill and proficiency attainable in the profession, [but] ... does not, on the other hand contemplate merely average merit." Holtzman v. Hoy, 118 Ill. 534, 8 N.E. 832 (1886).

  The effect of this preferred position is significant. Not only is the profession essentially allowed to establish its own standard of care, but also it is, in all practical respects, immunized by that standard of care. [citation omitted]
Quintana v. United Blood Services, 811 P.2d 424, 430-431 (Colo.App. 1991), aff'd for different reason, 827 P.2d 509 (Colo. 1992).

The concept of professional autonomy also appears in a terse remark by the Minnesota Supreme Court in an opinion in a case involving wrongful discharge of an attorney who was a full-time employee of a corporation. That court said:
  A client retains a lawyer to give sound advice even when that advice may not be what the client wants to hear. The knowledgeable client understands and, it is hoped, values in-house counsel's independence, this quality of personal autonomy which is inherent in any profession that is truly a profession, and which is uniquely essential to the legal profession.
Nordling v. Northern States Power Co., 478 N.W.2d 498, 501 (Minn. 1991)

I am aware of only one other case that mentions professional autonomy in the context of wrongful discharge, but that mention is in a dissent, which is not law. Pierce v. Ortho Pharmaceutical, 417 A.2d 505, 519 (N.J. 1980)(Pashman, J., dissenting).

Despite the paucity of judicial recognition of professional autonomy, the concept is well established — statutes in every state restrict the practice of professions (e.g., law, medicine, nursing, engineering, ...) to people who are licensed by the state. The ABA Model Rules of Professional Responsibility, Rule 5.4(d), forbids an attorney from practicing law in a for-profit corporation or association that is organized to practice law where a nonlawyer is a "corporate officer or director" or "a nonlawyer has the right to direct or control the professional judgment of a lawyer". This rule protects the professional independence of attorneys. Lawline v. Am. Bar Ass'n, 956 F.2d 1378, 1385 (7thCir. 1992), cert. den., 510 U.S. 992 (1993)(discussing violation of a related rule).

practical examples

Deference to learned professionals is not an idealistic concern of someone designing a utopia. Such deference is necessary to give professionals space to make discretionary decisions and to uphold their profession's ethical rules.

In two of the U.S. Supreme Court cases discussed in my essay on freedom of speech of government employees, the conflict between management and an individual's ethical obligation resulted in termination of the individual's employment.
1.   Myers' controversy grew out of Connick's decision to transfer Myers to another section of court, where Myers believed she could have a conflict of interest, in violation of fundamental obligations of an attorney. 507 F.Supp. at 753 (Finding of Fact Nr. 3), 61 U.S. at 141, n.1.

2.   Churchill's termination was the result of her upholding standards promulgated by the Joint Commission on Accreditation of Healthcare Organizations, the state Board of Nursing's regulations, and the Code of the American Nurse's Association. 977 F.2d 1114, 1122-1125 (7thCir. 1992). The Court of Appeals concluded that Churchill had been caught between her personal obligation as a nurse to uphold high ethical standards for patient care and management's desire to reduce costs:
  It is most disheartening to witness this scenario of combat and distrust occurring in far too many hospitals today across our country and is achieving nothing, but to exacerbate the nation's health care problems for hospital administrators are all too often turning a deaf ear to the needs and recommendations of the medical and nursing staffs. It is nothing but a turf battle between the administrators and their respective governing boards versus the health care professionals. This conflict does nothing for, and in fact interferes with and stifles, the health professional's interest and dedication in rendering the optimum of well-accepted patient care within the proper cost guidelines and at the same time without emasculating the employees' rights to express their constitutionally protected views on matters of public concern. This very delicate balance between the administrators, the hospital's board and the health care professionals must be maintained and fostered by all parties for the good of the patients in their care.
977 F.2d at 1129, rev'd, 511 U.S. 661 (1994).

Yet another example of this type of conflict is posed in a statute, 42 USC § 300a-6, that prohibits physicians at federally-funded clinics from advocating abortion to their patients. This statute clearly interferes with the right of the physician to give the most appropriate medical advice to each patient, and the right of patients to receive unbiased advice. Yet the U.S. Supreme Court upheld this statute in Rust v. Sullivan, 500 U.S. 173 (1991).

One particularly chilling example of a conflict of interest of physicians is a physician who is employed by a health insurance company to review proposed treatment of patients. The insurance company could "suggest" that the physician find ways to declare expensive treatments as either "experimental" or "not medically necessary", thus saving the insurance company's money (and, incidentally, denying the patient's best chance for life-saving treatment). This physician, without personally examining the patient and without honoring the medical ethics rule of putting patients first, interferes with the clinical judgment of the patient's physician by denying reimbursement for medical care that the patient needs.

It has been a common practice of health maintenance organizations (HMOs) to kick back some of the money saved to primary-care physicians who refuse to refer their patients to a specialist. This practice creates a blatant conflict of interest for the physician and is essentially bribery of physicians by the corporate managers.

It is no exaggeration to say that many of the problems with medicine in the USA during the 1990s is a direct result of loss of professional autonomy by physicians. In too many situations, businessmen who manage health insurance companies, HMOs, etc. are making decisions that limit the ability of physicians to provide medical treatment that the physician considers best for the patient.

In my view, which is emphatically not the law in most of the USA, learned professionals need some deference and freedom in order that they best serve society. There is often a higher ethical or moral obligation than pleasing one's manager.

Unfortunately, the federal and state law in the USA today does allow managers to terminate the employment of competent professionals, because the professionals have personality, mannerisms, or opinions that irritate their manager.

As explained in my essay on freedom of speech for government employees, there are two problems with using the Bill of Rights in the U.S. Constitution as a source of law to protect employees:
  1. only employees of state and federal government could be protected, since the First Amendment applies to neither corporations nor private parties, and
  2. since 1977, the U.S. Supreme Court has only weakly protected the freedom of speech of government employees.

Whistle-Blower statutes

States are free to give people more legal protection than the U.S. Constitution and federal law. In the public-policy exceptions to at-will employment, states have extended the protection against wrongful discharge to all employees, even employees of a private corporation or employees of an individual person.

A typical whistle-blower statute (e.g., 5 USC § 1213) is designed to protect employees who report:
  1. violations of law, rule, or regulation,
  2. wasteful expenditures of tax money, or
  3. activities that threaten the public health or safety.
While such statutes serve an important and vital purpose, the topic of this essay is limited to discussing freedom of learned professionals, specifically the right of a professional to object to – and to refuse to do – an unethical act. However, the whistle-blower statute in New Jersey is much more comprehensive than the typical whistle-blower statute.

New Jersey "Conscientious Employee Protection Act" of 1986 (CEPA)

The leading state statute in protecting employees who uphold ethics in face of management's desire for unethical conduct is the New Jersey "Conscientious Employee Protection Act" of 1986 (CEPA), N.J. Stat. 34:19-3, as amended and current as of May 2000. This New Jersey statute states:
  An employer shall not take any retaliatory action against an employee because the employee does any of the following:
  1. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer or another employer, with whom there is a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law, or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care;

  2. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer or another employer, with whom there is a business relationship, or, in the case of an employee who is a licensed or certified health care professional, provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into the quality of patient care; or

  3. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
    1. is in violation of a law, or a rule or regulation promulgated pursuant to law or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care;
    2. is fraudulent or criminal; or
    3. is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.

Remedies to the ex-employee for wrongful discharge under New Jersey Statute 34:19-5 include all of the following:
  1. An injunction to restrain continued violation of this act;
  2. The reinstatement of the employee to the same position held before the retaliatory action, or to an equivalent position;
  3. The reinstatement of full fringe benefits and seniority rights;
  4. The compensation for lost wages, benefits and other remuneration;
  5. The payment by the employer of reasonable costs, and attorney's fees; or
  6. Punitive damages.
There is a one-year statute of limitations on filing complaints under this New Jersey statute. In contrast, most causes of action under tort or contract law have at least a two-year statute of limitations.

The New Jersey Supreme Court, in Young v. Schering Corp., 660 A.2d 1153, 1157 (N.J. 1995), said there was "a dearth of legislative history" about this statute, and that the following quotation from an earlier case was all that was available:
  In 1986 the Legislature enacted CEPA to protect employees from retaliatory actions by employers. That law protects "whistleblowers," "who, believing that the public interest overrides the interest of the organization he [or she] serves, publicly 'blows the whistle' if the organization is involved in corrupt, illegal, fraudulent, or harmful activity." Ralph Nader et al., Whistleblowing: The Report of the Conference on Professional Responsibility vii (Ralph Nader et al., eds., 1972). As the bill's sponsor stated, CEPA's enactment is "important to all New Jersey workers who are concerned about working in a safe environment with honest employers." Linda Lamendola, Safeguards Enacted for "Whistleblowers", The Star Ledger, Sept. 8, 1986, at 1.

  When signing the whistleblower law, Governor Kean explained CEPA's purpose:
  It is most unfortunate — but, nonetheless, true — that conscientious employees have been subjected to firing, demotion or suspension for calling attention to illegal activity on the part of his or her employer.

  It is just as unfortunate that illegal activities have not been brought to light because of the deep-seated fear on the part of an employee that his or her livelihood will be taken away without recourse.
[Office of the Governor, News Release at 1 (Sept. 8, 1986).]
Abbamont v. Piscataway Township, 650 A.2d 958, 964 (N.J. 1994).

Case Law

It is a recent phenomena that ex-employees in the USA sue for wrongful termination in situations involving an ethical decision by the ex-employee. I did a search of the WESTLAW database on 1 June 2000 for cases in all fifty state supreme courts since 1945 that contained both the phrases "wrongful discharge" and "whistle-blower" — half of the cases were since April 1995.

Most wrongful discharge cases are filled in state court, under either the state's common law (e.g., the public-policy exception to an employer's ability to discharge an at-will employee for any reason or no reason at all) or a state whistle-blower statute.


legal basis for ethical duty

A consistent rule is that public policy is a matter of law (i.e., for the judge to decide), not a question of fact (i.e., for the jury to decide).

One early case, which pre-dates state whistle-blower statutes, involved a physician who refused to work on a new drug project, because she believed that a safer drug could soon be developed. Her personal interpretation of the Hippocratic Oath was the basis for her refusal. She lost her case, but the New Jersey Supreme Court did say in dictum:
  Employees who are professionals owe a special duty to abide not only by federal and state law, but also by the recognized codes of ethics of their professions. That duty may oblige them to decline to perform acts required by their employers.
Pierce v. Ortho Pharmaceutical, 417 A.2d 505, 512 (N.J. 1980).
This remark in dicta has been mentioned by several courts outside New Jersey:
Shearin v. E.F. Hutton, Inc., 652 A.2d 578, 587 (Del.Ch. 1994).
General Dynamics Corp. v. Rose, 876 P.2d 487, 502 (Calif. 1994);
Rocky Mountain Hospital v. Mariani, 916 P.2d 519, 525 (Colo. 1996);
These citations are an important recognition of the legal significance of ethical codes promulgated by nonprofit professional societies.

After the Conscientious Employee Protection Act (CEPA) was enacted, the New Jersey Supreme Court discussed how it would determine public policy in interpreting claims under the CEPA:
We look generally to the federal and state constitutions, statutes, administrative rules and decisions, judicial decisions, and professional codes of ethics to inform our determination whether specific corrupt, illegal, fraudulent or harmful activity violates a clear mandate of public policy, but those sources are not necessarily exclusive. A salutary limiting principle is that the offensive activity must pose a threat of public harm, not merely private harm or harm only to the aggrieved employee. [citations omitted]
Mehlman v. Mobil Oil, 707 A.2d 1000, 1013 (N.J. 1998).

  In our view, the sensible meaning of CEPA is that the objecting employee must have an objectively reasonable belief, at the time of objection or refusal to participate in the employer's offensive activity, that such activity is either illegal, fraudulent or harmful to the public health, safety or welfare, and that there is a substantial likelihood that the questioned activity is incompatible with a constitutional, statutory or regulatory provision, code of ethics, or other recognized source of public policy. Specific knowledge of the precise source of public policy is not required. The object of CEPA is not to make lawyers out of conscientious employees but rather to prevent retaliation against those employees who object to employer conduct that they reasonably believe to be unlawful or indisputably dangerous to the public health, safety or welfare.
Mehlman, 707 A.2d at 1015-1016.

Of course, before a court will use a specific rule in an ethical code from a professional society, that rule must be intended to protect the public Good, not to confer an advantage on a member of the professional society. See, for example, Foley v. Interactive Data Corp., 765 P.2d 373, 379 (Calif. 1988)("... affects a duty which inures to the benefit of the public at large rather than to a particular employer or employee."); Pierce v. Ortho Pharmaceutical, 417 A.2d 505, 512 (N.J. 1980)("a code of ethics designed to serve only the interests of a profession ... probably would not be sufficient."). As a hypothetical example, a rule in the code of ethics of the National Society of Trolls to cooperate with other members of that Society, and to frustrate nonmembers of the Society, is not a principle that would justify a public-policy exception to at-will employment.

There is a remark in one major case that the court would not recognize the American Bar Association (ABA) Model Code of Professional Conduct. General Dynamics v. Rose, 876 P.2d 487, 503, n.6 (Calif. 1994). This specific rule makes sense because attorneys are bound by the legal rules that are promulgated by the state supreme court or state bar, not the ABA's Model Code. The rejection of the ABA Model Code by the California Supreme Court in this specific case is distinguishable from the admissibility of codes from most other professional societies, where there is no corresponding official code of conduct that is promulgated by the state government.

The Pennsylvania Whistleblower Law, 43 P.S. § 1422 (1986), specifically includes in the list of wrongdoing that a whistleblower can report:
A violation[,] which is not of a merely technical or minimal nature[,] of a Federal or State statute or regulation, ..., or of a code of conduct or ethics designed to protect the interest of the public or the employer.
Unfortunately, only employees of the Pennsylvania state and local governments are protected by this statute. However, the statute does protect employees of The Pennsylvania State University. Podganski v. Pennsylvania State Univ., 722 A.2d 730 (Pa.Super 1998).

I would welcome the opportunity to prepare a memorandum of law for attorneys who need to argue for the acceptability in court of codes of conduct or ethics that are promulgated by professional societies. I am already familiar with many of the citations to authority in support of this proposition.

1. attorneys

The traditional rule is that a client can discharge an attorney for any reason, or no reason at all. The attorney has no recourse in the courts for an allegedly unfair discharge by his/her client. This rule makes sense because of the attorney's fiduciary duty to his/her client, as well as the attorney's continuing obligation to maintain disclosures by the client in strict confidence. Moreover, an attorney is probably relieved to be rid of a client who has demanded that the attorney engage in conduct for which the attorney could be disbarred or sanctioned. Further, the attorney presumedly has a continuing income from his/her other clients, so discharge by one client is not a financial catastrophe to the attorney.

The situation is different for an attorney who is employed full-time by his/her client (i.e., the attorney is a so-called "in house counsel"). In this situation, the attorney has only one client, so discharge by that client can have a dramatic financial impact on the attorney. The traditional rule in the USA was that a former in-house counsel could not maintain a wrongful discharge action against their former employer. That traditional rule was altered in a series of cases:
  1. Parker v. M & T Chemicals, 566 A.2d 215 (N.J.Super. 1989);
  2. Mourad v. Automobile Club Ins., 465 N.W.2d 395 (Mich.App. 1991)(plaintiff awarded US$ 1,250,000 for breach of just-cause employment contract);
  3. Nordling v. Northern States Power Co., 478 N.W.2d 498 (Minn. 1991);
  4. General Dynamics v. Rose, 876 P.2d 487 (Calif. 1994);
  5. GTE Products Corp. v. Stewart, 653 N.E.2d 161 (Mass. 1995).
Nonetheless, reinstatement is not available as a remedy for an in-house counsel who has been wrongfully discharged, because a client can never be compelled to use an attorney against the will of the client.

In a thoughtful analysis, the California Supreme Court wrote:
... attorneys should be accorded a retaliatory discharge remedy in those instances in which mandatory ethical norms embodied in the Rules of Professional Conduct collide with illegitimate demands of the employer and the attorney insists on adhering to his or her clear professional duty. It is, after all, the office of the retaliatory discharge tort to vindicate fundamental public policies by encouraging employees to act in ways that advance them. By providing the employee with a remedy in tort damages for resisting socially damaging organizational conduct, the courts mitigate the otherwise considerable economic and cultural pressures on the individual employee to silently conform.
Rose, 876 P.2d at 501.

In the first case to uphold the right of an in-house counsel to sue for wrongful discharge, the New Jersey Superior Court considered a case in which Parker, the former in-house chief patent attorney of M & T Chemicals, alleged that M & T had purchased documents containing trade secrets that had been filed under a protective order in litigation not involving M & T. Such a purchase of confidential information was both unlawful and unethical. When Parker objected to M & T management, Parker was constructively discharged. In allowing Parker's litigation to proceed under the New Jersey CEPA, the Superior Court stated:
If anything, our holding should discourage employers from inducing employee-attorneys to participate in or condone illegal schemes and should encourage an attorney's resolve to resist such inducements because they may now enjoy some specific statutory protections.
Parker v. M & T Chemicals, 566 A.2d 215, 220 (N.J.Super. 1989).

The [CEPA] does not interfere with any legitimate interest of the employer-client. Rather, it reinforces the Court's constitutional mission to encourage and insure the ethical practice of law. We see no constitutional incompatibility and will not read in-house attorneys out of the Act's protection.

  Finally, we reject defendants' contention that the attorney-client privilege respecting disclosure of confidential communications inherently conflicts with the assertion of a claim under the Act and that entertaining such a cause of action is somehow inimicable to the healthy subsistence of attorney-client relationships in general.
Parker, 566 A.2d at 221.

Our holding today does not interfere with the Supreme Court's mandate over the practice of law. If anything, our holding should reinforce integrity and ethical professional practice, not interfere with it.

  We find no constitutional or practical necessity to declare the Conscientious Employee Protection Act unconstitutional insofar as an in-house attorney's claims for money damages and fees arising from wrongful retaliation during the in-house employment relationship are concerned. [footnote omitted] The order refusing to dismiss the complaint is affirmed.
Parker, 566 A.2d at 222.

Another type of case involves an attorney who is an employee of a law firm, where the law firm terminates the attorney's employment because that attorney obeyed a requirement of the Code of Professional Responsibility. The leading case of this type is Wieder v. Skala. Wieder reported the professional misconduct of another associate in the law firm, contrary to the directions of the partners of the law firm that employed both associates. In retaliation, the law firm terminated Wieder's employment. Reporting the professional misconduct was a personal obligation imposed on all attorneys in New York State under Disciplinary Rule DR 1-103(A). (The same requirement is imposed on attorneys in every state, under each state's rules for members of the bar.) Wieder sued and the highest court in New York State held that Wieder had a cause of action for breach of an implied-in-fact contract, even though Wieder was an at-will employee of the law firm. Wieder v. Skala, 609 N.E.2d 105 (N.Y. 1992). That court stated:
... plaintiff's performance of professional services for the firm's clients as a duly admitted member of the Bar was at the very core and, indeed, the only purpose of his association with defendants. Associates are, to be sure, employees of the firm but they remain independent officers of the court responsible in a broader public sense for their professional obligations. Practically speaking, plaintiff's duties and responsibilities as a lawyer and as an associate of the firm were so closely linked as to be incapable of separation. It is in this distinctive relationship between a law firm and a lawyer hired as an associate that plaintiff finds the implied-in-law obligation on which he founds his claim.

  We agree with plaintiff that in any hiring of an attorney as an associate to practice law with a firm there is implied an understanding so fundamental to the relationship and essential to its purpose as to require no expression: that both the associate and the firm in conducting the practice will do so in accordance with the ethical standards of the profession. Erecting or countenancing disincentives to compliance with the applicable rules of professional conduct, plaintiff contends, would subvert the central professional purpose of his relationship with the firm--the lawful and ethical practice of law.
Wieder, 609 N.E.2d at 108.

  Moreover, as plaintiff points out, failure to comply with the reporting requirement may result in suspension or disbarment. [citation omitted] Thus, by insisting that plaintiff disregard DR 1-103(A) defendants were not only making it impossible for plaintiff to fulfill his professional obligations but placing him in the position of having to choose between continued employment and his own potential suspension and disbarment.
Wieder, 609 N.E.2d at 109.
The New York Court of Appeals refused to recognize Wieder's potential cause of action for abusive discharge, because that court insisted that only the state legislature could create public-policy exceptions to at-will employment and the legislature had not done that. Wieder, 609 N.E.2d at 110. However, the Court of Appeals did recognize that the defendant law firm had breached an implied-in-fact contract with Wieder.


In another case, a female attorney in the state attorney's office complained about several gender-based differences in salary and workload, reported one possible campaign finance violation to the Governor, as well as complained about office policy in the state attorney's office. The State Attorney "abruptly terminated" her employment, although, earlier the same day, she had received a satisfactory performance evaluation. A court ordered the State Attorney to reinstate the terminated attorney, pending the outcome of an investigation. Lindamood v. Office of the State Attorney, 731 So.2d 829 (Fla.App. 1999). The case is vaguely reminiscent of Connick v. Myers, which was discussed in my essay on freedom of speech of government employees, except that Myers sued under federal law and Lindamood sued under a state whistleblower protection statute.

2. physicians and nurses

In an early case, an X-ray technician's employment was terminated because she refused to perform catheterizations on patients. Only licensed nurses or physicians could legally perform such procedures, not a technician. The New Jersey Superior Court held that the complaint stated a cause of action for breach of the employment contract. O'Sullivan v. Mallon, 390 A.2d 149 (N.J.Super. 1978). The final disposition of this case is not reported.


A nurse at a convalescent home had a "heated conversation" with the administrator of the home about abuse of a patient, who was the aunt of the nurse. The nurse threatened to report the abuse to the state government agency that protects patients' rights. The administrator fired the nurse. An appellate court in Oregon held that not only did the nurse have a cause of action for wrongful discharge, but also that the nurse only needed a good-faith belief about mistreatment of patients. In other words, the nurse did not need to prove that the patient was actually abused; the state government does not need to investigate and conclude that actual abuse occurred. The final disposition of this case is not reported. McQuary v. Bel Air Convalescent Home, Inc., 684 P.2d 21 (Or.App. 1984), review denied, 688 P.2d 845 (Or. 1984).


In a 1992 case, a nurse with 40 years of experience only in maternity and neonatal care was ordered by the hospital to temporarily work in an area of the hospital with post-operative and geriatric patients. The nurse refused, on grounds that she was not qualified to work in those areas. The hospital interpreted her refusal "as a voluntary resignation of her employment." A jury found that the nurse had been wrongfully discharged and awarded her $ 39,344 in lost earnings, which was upheld by the Supreme Court of Wisconsin. Winkelman v. Beloit Memorial Hospital, 483 N.W.2d 211 (Wisc. 1992).


A physician wrote on the charts of patients that he had performed bronchoscopies on them. Either informed consent for the procedure was not obtained from the patients or the physician forged the patients' signatures on the consent forms. Kraus, the vice-president of nursing at the hospital, reported these problems to the hospital administration, who initiated a cursory investigation that failed to interview the nurses, patients, or the patients' relatives. The Medical Board, which represented the physicians at the hospital, unanimously passed a vote of no confidence in Kraus. Kraus sued for defamation and conspiracy. Kraus's employment was terminated, despite her "above average" performance evaluations. Kraus then added to her Complaint a claim for retaliatory discharge under New York State Labor Law §740. A jury awarded Kraus $ 703,250 for loss of income and fringe benefits, plus $ 587,200 in legal fees and expenses for her wrongful termination. This award was reduced by the appellate court, which also ordered the hospital to reinstate Kraus to her former position. Kraus v. New Rochelle Hosp., 628 N.Y.S.2d 360 (1995), leave to appeal dismissed, 659 N.E.2d 773 (N.Y. 1995).


While not employment cases, there have been several cases in which physicians were expelled from a "preferred provider organization" (PPO). In many communities, physicians who are not members of a PPO have difficulty earning a living, since health insurance companies and health maintenance organizations (HMOs) give financial incentives to patients who use physicians who are members of a PPO. Courts have held that dismissals of physicians from a PPO for no reason or a bad reason violates public policy. Harper v. Healthsource New Hampshire, Inc., 674 A.2d 962 (N.H. 1996); Napoletano v. Cigna Healthcare, 680 A.2d 127 (Conn. 1996), cert den., 520 U.S. 1103 (1997) (claims not preempted by ERISA, remanded for trial); Potvin v. Metropolitan Ins. Co., 997 P.2d 1153 (Calif. 2000).

3. professional engineers

When I searched state cases in the WESTLAW database in June 2000, I found no reported case in which a professional engineer had won a wrongful discharge case in court, where the a professional engineer was wrongfully discharged because the engineer chose to protect the public health and safety, instead of obey his employer's orders.

However, there are several cases that raise similar issues.


An airline mechanic who was licensed by the Federal Aviation Administration (FAA) noticed that the axle sleeve on the main landing gear of a DC-9 was "scarred and grooved, with gouges and burn marks". He wanted to replace the sleeve but his supervisor ordered him to smooth it with sandpaper then reinstall it. The supervisor then ordered him to certify that "the repair had been performed satisfactorily and the aircraft was fit for return to service." The mechanic refused to certify, because he believed the sleeve needed to be replaced. The mechanic was fired for "insubordination". The Hawaii Supreme Court held that the mechanic stated a claim for wrongful discharge and that the FAA regulations "to protect the public from shoddy repair and maintenance practices" were the relevant public policy. Norris v. Hawaiian Airlines, Inc., 842 P.2d 634 (Hawaii 1992), judgment aff'd, 512 U.S. 246 (1994). This case was complicated by the fact that Norris was a member of a labor union and covered by a collective bargaining agreement. The final result after remand is not reported.


An airline mechanic alleged that he replaced a defective part in an airplane, was ordered by his supervisor to remove the good part, reinstall the defective part, and sign a false certification that the defective part had been replaced and the airplane was airworthy. The mechanic refused to sign the false certification and was fired. The trial court dismissed the mechanic's claim for wrongful discharge. The Court of Appeals in Oregon reversed, holding that refusing to violate FAA safety regulations was within the public-policy exception to at-will employment. Anderson v. Evergreen Airlines, Inc., 886 P.2d 1068 (Or.App. 1994).


Green, an inspector at a manufacturing plant, complained internally that his employer was shipping parts to manufacturers of civilian and military aircraft, for use in their aircraft, although some of the parts had failed his inspection. Green's employment was terminated and Green sued for wrongful discharge. The California Supreme Court held that Green could maintain a case for wrongful discharge and that the relevant public policy was stated in federal regulations concerning airplane safety. Green v. Ralee Engineering Co., 960 P.2d 1046 (Calif. 1999). The California Supreme Court concluded that:
By including significant administrative safety regulations promulgated to serve important FAA mandates as a source of fundamental public policy limiting an employer's right to discharge an otherwise at-will employee, we effectively guarantee that employers do not exercise their right to terminate their employees at will in a way that undermines more important public safety objectives.
Green at 1061.


In addition to these cases involving safety of airplanes, there is a case involving manufacture of eyeglass lenses without also performing required tests for impact resistance of the finished lens.
  Plaintiff, Judy A. Boyle, worked as a lab helper for Vista Eyewear, an optical manufacturing company, from September, 1977, to January 9, 1979, in Vista's bench department. Her duties included hand-edging, hardening and testing eyeglass lenses produced by defendant. The regulations of the United States Food and Drug Administration [21 C.F.R. § 801.410, pursuant to 21 U.S.C. § 360j] require all eyeglass manufacturers to test all glass lenses for their resistance to breaking or shattering before such lenses may be sold or distributed to the public.

  Plaintiff's evidence tended to establish that the standard industry procedure is to submit all lenses to either a hardening chemical treatment or heat treatment. The "chem-test" process involves an overnight bake of a tray of the glass lenses in a chemical solution. The heat treatment involved the heating of one lens at a time. After either such treatment, to determine whether lenses have sufficiently hardened, the lenses are subjected to an impact test. Each lens is placed in a drop ball machine and a steel ball the size of a quarter is dropped about forty-eight inches through a tube to strike the center of the lens.

  Plaintiff and her witnesses testified that the drop ball impact test was never used by Vista and that on all rush jobs and on some other lens jobs the hardening treatment was skipped. Nevertheless, plaintiff was required to initial a form for each set of eyeglasses stating that she had heat or chemically treated and impact tested the lenses.

  Mrs. Boyle complained to her supervisor and to defendant David Baker, president and part owner of Vista, about the company's practice of not hardening and testing lenses. When she spoke to Mr. Baker expressing concern about potential injuries to customers' eyes, he said that it was not her worry, that he had insurance that would take care of it if he got sued. Plaintiff told Mr. Baker that "money was a poor substitute for somebody's eyesight." She testified that Baker "was very aggravated with me. He told me ..., 'Just go do what you're told. I don't want to hear any more about it.' "
Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859, 861 (Mo.App. 1985).

"After months of such fruitless urgings," Boyle and four other employees complained to the federal Occupational Safety and Health Administration (OSHA) and the federal Food and Drug Administration (FDA). When Boyle told Baker what they had done, Baker ordered her "to withdraw the complaints and to tell the FDA that they had lied." Baker "also instructed other employees to throw broken glass into the bottom of the [unused] drop ball testing machine, apparently" to perpetrate a fraud on the government inspectors. Boyle's employment was terminated about two months after her complaint to the FDA. Id. at 861.

Boyle sued for "failure to issue a service letter that correctly stated the true reason for her discharge" under a Missouri statute, and also for wrongful discharge. The trial court dismissed her wrongful discharge action for failure to state a claim upon which relief may be granted. A jury awarded Boyle $ 15,000 in punitive damages on her service letter claim. An appellate court upheld this punitive damages award and reinstated her wrongful discharge claim.

Baker conceded that Boyle "was a good worker", who did her work satisfactorily. Id. at 862. The appellate court noted in passing that Baker, the president of the company, "took advantage of an apparently legitimate excuse to rid the firm of a gadfly." The jury reasonably believed that Boyle's employment was terminated because of Boyle's complaints about hardening and testing the lenses. Id. at 867.

In remanding the wrongful discharge claim to the trial court, the appellate court concluded:
  Plaintiff Boyle was fired, according to [her wrongful discharge claim], because she warned defendants that she would notify the FDA of their illegal practices if they did not stop and because, despite her warnings, defendants chose to continue to violate the positive duty laid upon them by the federal regulation and to continue to insist that their employees do the same. She might have added, as the record clearly indicates and the jury apparently believed, that she was also fired for refusing to violate the FDA regulation, for persisting in hardening and testing lenses in compliance with the regulation and for actually reporting defendants' violations to the FDA. Under the public policy exception, any one of those allegations, including those now in [her wrongful discharge claim], would state a cause of action. She should be permitted to amend her petition accordingly.

  Although employers generally are free to discharge at-will employees with or without cause at any time, they are not free to require employees, on pain of losing their jobs, to commit unlawful acts or acts in violation of a clear mandate of public policy expressed in the constitution, statutes and regulations promulgated pursuant to statute. The at-will employment doctrine does not depend upon the employer having such a right. The employer is bound to know the public policies of the state and nation as expressed in their constitutions, statutes, judicial decisions and administrative regulations, particularly, as here, those bearing directly upon the employer's business.
Boyle at 877.
The final disposition of this case is not reported.

There is also the case of Paul M. Lorenz, a mechanical engineer who specialized in fracture mechanics of metals, whose employment at Martin Marietta Corporation was terminated, allegedly because of three ethical issues.
  1. Lorenz "expressed his concern that the testing sequence proposed was inadequate" for an external tank for NASA's space shuttle. Lorenz was ordered by his supervisor to make modifications to the minutes of a meeting that had been prepared by Lorenz, which Lorenz refused to do.
  2. Lorenz complained about the design and construction of a test fixture, in which Martin Marietta spent only 40% of the funds appropriated by NASA.
  3. Lorenz "was pressured by his superiors to attest to the adequacy of certain materials.... His refusal was based on his professional opinion that the materials has not been subjected to adequate testing."
Lorenz's employment was terminated on 25 July 1975. The trial court entered a directed verdict against Lorenz on his claim for wrongful discharge, but an appellate court reversed, citing the employer's apparent violation of the federal fraud statute (18 USC § 1001) as the relevant public policy. The Colorado Supreme Court affirmed the appellate court.
Lorenz v. Martin Marietta Corp., 823 P.2d 100 (Colo. 1992).
The final disposition of this case is not reported.


4. scientists

The leading case involving wrongful discharge of a scientist who followed ethical principles of his profession is Mehlman v. Mobil Oil, 707 A.2d 1000 (N.J. 1998). Dr. Mehlman was an internationally respected toxicologist who was employed by Mobil Oil. When Dr. Mehlman learned that Mobil was selling gasoline in Japan that contained more than 5% benzene (for comparison: gasoline sold in the USA must contain less than 1% benzene), Dr. Mehlman insisted that Mobil immediately stop this harmful practice. Mobil decided to terminate Mehlman's employment one month after he objected to the high benzene concentrations. After a ten-day trial, the jury awarded Dr. Mehlman US$ 3,440,300 in compensatory damages (Mehlman's wages and benefits for the six years remaining until his retirement at age 65 years, plus US$ 875,000 for his emotional distress) and US$ 3,500,00 in punitive damages.

In another case, a non-union employee of a railroad alleged that his employment was terminated because "he refused to manipulate and adjust sampling results used for pollution control reports which were filed with the state" government. An appellate court in Michigan held that he had stated a cause of action under the public-policy exception to at-will employment. Trombetta v. Detroit, Toledo & Ironton Railroad Co., 265 N.W.2d 385, 388 (Mich.App. 1978). Unfortunately, the railroad company won on summary judgment, because Trombetta's attorney failed to allege sufficient facts to oppose the Railroad's motion, hence there was no material issue of fact to resolve. 265 N.W.2d at 389-390.


safety

Abbamont, a nontenured industrial arts teacher, had his contract not renewed, thus denying him tenure, because he had repeatedly complained to the principal and school superintendent about poor health and safety conditions (particularly the lack of ventilation to remove fumes) in the metal working shop and plastics shop where he taught. Abbamont v. Piscataway Township Bd. of Education, 650 A.2d 958 (N.J. 1994). These were not just theoretical concerns, the environment caused Abbamont "to experience dizziness, nausea, headaches, coughing, and trouble breathing." Abbamont 650 A.2d at 961. Abbamont's physician diagnosed "hyperactive airways disease and probable occupational asthma" as a result of "continued exposure to wood dust, smoke and fumes." Abbamont 634 A.2d at 542. After trial, a jury awarded Abbamont compensatory damages of $ 60,000. Abbamont, 650 A.2d at 961.

As an example of the kind of game that the defendant school board played, at trial their attorney introduced into evidence an air quality test that was performed on a day when "no machines were running ... nor had been running for 'a long time' before that day." Of course, the real environment experienced by Abbamont and his pupils must be measured towards the end of a school day, after normal use of all of the machines during the entire school day. Abbamont 634 A.2d at 542.

The New Jersey Supreme Court also upheld the appellate court ruling that Abbamont could also seek punitive damages from the school board. On remand, unfortunately, the trial court dismissed Abbamont's punitive damage claim, so the case was appealed again, and again remanded for trial on the punitive damage claim. Abbamont v. Piscataway Township Bd. of Education, 714 A.2d 958 (N.J.Super. 1998), aff'd, 746 A.2d 997 (N.J. 1999). The lower appellate court stated:
Therefore, we are satisfied that just as a private corporation may be liable for punitive damages for the conduct of its president and other high level executives, see Lehmann v. Toys 'R' Us, Inc., supra, 132 N.J. at 624-25, 626 A.2d 445, a board of education may be liable for punitive damages for the egregious misconduct of its superintendent of schools and other high level administrators.

  The trial record in this case contains ample evidence from which a jury could find actual participation by upper management or wilful indifference to especially egregious wrongful conduct in violation of CEPA. Viewing the evidence in the light most favorable to him, plaintiff attempted over a period of two-and-a-half years to alleviate unhealthy and dangerous conditions in a public school classroom, but his supervisors not only rebuffed him but also recommended the non-renewal of his employment contract because of his complaints. In addition, the evidence would support a finding that Superintendent Edelchick, Assistant Superintendent and Board Secretary Vander Vliet, Principal McGarigle and Industrial Arts Supervisor Papariello, were all participants in this retaliatory action.
Abbamont, 714 A.2d at 963 (N.J.Super. 1998).

Ten years after Abbamont filed his Complaint, this case was still bouncing around in the New Jersey courts! Fortunately, Abbamont was able to secure employment, and earn tenure, "in another school district where he earns a higher salary than he would be receiving if her were still employed in Piscataway." Abbamont 714 A.2d at 960.

After the first remand from the New Jersey Supreme Court, the trial court awarded Abbamont $ 169,451 in attorney's fees and costs. This award was only 27% of Abbamont's actual fees and expenses at that time. In 1998, the appellate court held that it was "premature" to review the award of attorney's fees, since there still was not "a final determination of all issues at the trial level." Abbamont 714 A.2d at 961, 965-966. It is clear that there should be a substantial award of attorney's fees to Abbamont, as a result of the many appeals in this case.

The trial court refused to order the Piscataway schools to rehire Abbamont, because of "the very real probability of continued animosity" between the parties. The appellate court decided that the Piscataway schools must offer Abbamont the next available teaching position in the industrial arts department. In remarks that may be useful to others who are wrongfully discharged and who seek reinstatement, the appellate court stated:
  However, in urging a court to deny the reinstatement of an employee who has been wrongfully terminated, an employer may not rely upon animosity between the parties which is solely the product of the employer's violations of CEPA and the employee's efforts to vindicate his or her rights under this legislation. See Lander v. Lujan, 888 F.2d 153, 158 (D.C.Cir.1989) ("Nor do we understand how an employer's claim that his workplace would be disrupted could possibly defeat the victim's entitlement to complete relief when, after all, the employer's intentional discrimination created the disturbance by harming the plaintiff."); Gallo v. John Powell Chevrolet, Inc., 779 F.Supp. 804, 815 (M.D.Pa.1991) ("Allowing the probability of hostility to negate reinstatement would give in to the attitudes which brought about the discrimination in the first place, an intolerable result.").
Abbamont, 714 A.2d at 965.


For employees who make a complaint to OSHA, 29 USC § 660(c) protects those complainants from both discharge and discrimination by their employers.

political expression not protected

To shorten this long essay, I have moved my discussion of freedom of speech for employees of private corporations to a separate essay.


My Proposal

I suggest that states enact a statute similar to New Jersey statute 34:19, which was quoted above, with the following additional features:
  1. Upon termination of employment, or nonrenewal of an employment contract, the employee must automatically be given a written statement of reason(s) for the termination or nonrenewal.

  2. The reason(s) for termination or nonrenewal of an employment contract given in the letter to the employee in writing at the time of termination or nonrenewal shall be conclusively presumed to be the true reason(s) for the employer's decision. The employer shall not be permitted to offer into evidence at trial for wrongful discharge any other reasons that might justify the termination or nonrenewal of employment. Failure to provide a written statement of reason(s) at the time of termination or nonrenewal shall be considered an admission by the employer that the termination or nonrenewal was for impermissible motives.

  3. If an employee can prove in court by a preponderance of evidence that at least one of the reasons was a violation of the employee's civil liberties under either state or federal law, including freedom of speech, then the employer shall be found to have wrongfully discharged the employee.

  4. If any employed, licensed professional (i.e., attorney, physician, nurse, professional engineer) can prove in court by a preponderance of evidence that his/her employment was terminated, or his/her employment contract was not renewed, because the employee complied with a personal obligation either:
    1. under the relevant code of professional responsibility or ethics that is promulgated by the relevant licensing authority,
    2. in a regulation issued by the federal or state government, or
    3. in a statute issued by the federal or state government,
    then the employer shall be found to have wrongfully discharged the employee.

  5. If any employed learned professional (e.g., scientist, professor, librarian, physician, nurse, engineer) can prove in court by a preponderance of evidence that his/her employment was terminated, or his/her employment contract was not renewed, because the employee either:
    1. complied with a personal obligation under the relevant code of professional responsibility or ethics that is both promulgated by at least one recognized professional society and intended to protect the public health, safety, or welfare,
    2. obeyed a regulation or statute issued by the federal or state government,
    3. refused to commit fraud,
    4. refused to misrepresent results of research that the employee reasonably knew to be true, or
    5. refused to infringe either a U.S. Patent, copyright, or federally-registered trademark
    then the employer shall be found to have wrongfully discharged the employee.
I emphasize that this draft statute is only my proposal, and is not the current law in the USA.

Links to other web sites

To shorten this long essay, I have moved my annotated list of links about professional ethics and whistleblowing from here to a separate document. These links are not a bibliography for this essay, but are sources of additional information on ethics and whistleblowing.

See also the links to specific codes of ethics from various professional societies that are included in the text above in this essay.

I prepared this essay after reading only primary sources (i.e., reported opinions of appellate courts, the New Jersey statute) and various professional codes of conduct. However, some of the court opinions cited many law review articles on the subject of retaliatory discharge. A few of these articles are cited in my companion essay that briefly sketches the history of the doctrine of at-will employment in the USA, as well as criticism of this doctrine.

Conclusion

The blunt honesty of the little boy in the children's story about the Emperor Who Wore No Clothes is not the way of sophisticated adults in the USA who want to stay employed. An employee who dares to criticize openly policies and decisions of management would be considered by most adults to be naive, unrealistic, hopelessly idealistic, and other pejorative labels.

I remind readers that employee's rights in the USA are extremely limited. Employers can, and frequently do, terminate employment of employees in the USA who have "too much" integrity or ethics. The few cases cited above represent the beginning of what may be a slow drift away from the absolute right of the employer to dismiss an employee under the doctrine of at-will employment. Employees who choose to defy their management, either by criticizing management or by refusing to do an unethical act that management demands, are likely to have their employment terminated. Except in a few states, like New Jersey, it is not likely that a court would intervene to protect the ex-employee.

There are three reasons why codes of ethics of professionals are largely meaningless for professionals who are employed in the USA:
  1. Given the real threat of termination of their employment, most professionals will choose to follow their manager's wishes, instead of follow the ethical code. This is not a cynical view: a person has a legal duty to provide financial resources to his/her minor children and spouse. Moral superiority does not pay a mortgage or purchase groceries.

  2. After blowing the whistle on one employer, the whistleblower is a pariah, who other employers will summarily refuse to employ, since employers value loyalty to their organization more than either ethics or Truth. Thus, the act of whistleblowing makes the conscientious employee an expendable commodity who is thereafter unemployable.

  3. If society does not protect the continued employment of professionals who make an ethical choice in the face of opposition by their employer, then that society does not deserve professionals with high ethical standards.
To avoid misunderstanding, I personally believe that ethics codes are essential to both civilized society and professional behavior. But I also believe that society should not require employed professionals to become martyrs, because those professionals choose to follow a code of ethics instead of pleasing their manager.

If you believe that law should protect employed learned professionals who uphold ethical principles of their profession, then I urge that you contact your state legislators and push for improved statutes in your state.


this document is at   http://www.rbs2.com/ethics.htm
revised 10 Sep 2000

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