No clear public policy favoring employee's right to hire attorney without threat of discharge
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Wednesday, June 22, 2016

No clear public policy favoring employee's right to hire attorney without threat of discharge

By Brandi O. Brown, J.D. An employee who contended that he was fired for consulting and hiring an attorney after he filed a workers' compensation claim was unable to dissuade a federal district court in South Carolina from adopting, in full, a magistrate judge's recommendation that his claims—including a claim for wrongful termination in violation of public policy—be dismissed. His causes of action for wrongful termination in violation of public policy and negligent misrepresentation were dismissed with prejudice (Bouknight v. KW Associates, LLC dba KW Beverage, June 16, 2016, Currie, C.). Hired an attorney, was fired, filed suit. The employee alleged that he was fired for hiring an attorney after he had filed a workers' compensation claim. In addition to a statutory claim under S.C. Code Ann. Sec. 41-1-80 for retaliation for having instituted a workers' compensation claim, in his complaint the employee also asserted causes of action for wrongful termination in violation of public policy and negligent misrepresentation. The defendants, his former employer and an individual defendant, filed a motion to dismiss the latter two claims. A magistrate judge assigned to the case issued a report recommending that the motion to dismiss be granted in full. Noting that the magistrate judge's report was only a recommendation, with no presumptive weight, the court adopted the magistrate's reasoning and recommendation. Dismissal at pleading stage allowed. According to the magistrate, the wrongful termination claim should be dismissed because it was not based on one of the two recognized bases for such a claim, i.e., it did not allege that the employer required the employee to break the law or that the termination was a violation of criminal law. Nor was the claim based on any other clear mandate of public policy, the magistrate judge reasoned, and the court agreed. Although the employee argued that South Carolina courts do not dismiss, at the pleading stage, wrongful termination claims that are based on "novel public policy theories," the court found this argument to be incorrect. The South Carolina Supreme Court has not held that lower courts could not address those issues at the pleading stage. In fact, to the contrary, it has held that the public policy question was one of law that the courts should decide. Therefore, it could "often, if not always, be resolved at the pleading stage." Already had a statutory remedy. Although the employee cited several sources that touched on the public policy he proposed—the right to consult and hire a lawyer without threat of being fired—the sources he identified were "too generic and peripheral to constitute a clear mandate of the particular public policy" on which his claim depended. He relied upon the General Assembly's recognition of the state supreme court's power to regulate the practice of law, its adoption of professional conduct rules, and the state constitution's recognition of a right to a speedy remedy, among other things. The at-will doctrine, the court explained, was rooted in the state's public policies and any exceptions should originate from the legislature and, secondarily, from the state's highest court. In fact, the court explained, the legislature had spoken on this by providing the statutory remedy for retaliation upon which one of the employee's unchallenged causes of action rested. Because a different "form of redress" existed for such claims, they could not be pursued with a wrongful termination claim. Actions that "fall near but outside" of those statutory protections, moreover, fail because the legislature was aware of the subject matter and presumably "provided the remedy it deemed appropriate." Intentional, rather than negligent. With regard to the employee's negligent misrepresentation claim, the court also adopted the magistrate judge's reasoning and recommendation. His claim rested on his allegation that the individual defendant had told him he would have a job with the employer until he was prepared to retire, an assurance he alleged the defendants knew was false at the time because they had no intention of honoring it. This was not an allegation of negligence, the court explained, but instead an allegation regarding an intentional act. The negligent misrepresentation allegations were dismissed for failure to state a claim.

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