Wrongful Termination in Wisconsin: When Firing an Employee Violates Public Policy

At-Will Employment in Wisconsin: The General Rule

Wisconsin employers fire employees for questionable reasons all the time. Sometimes they fire an employee over a personal disagreement that has nothing to do with the employee’s job. Sometimes they fire an employee for something she didn’t do. But the general rule in Wisconsin, as in almost every other state, is that employment is “at-will,” which means that an employer can terminate an employee for almost any reason, good or bad, right or wrong—or for no reason at all.

Common Exceptions to At-Will Employment

There are a few common exceptions to the general rule of at-will employment. For example:

an employer can’t fire you because of your race, your sex or gender, or your disability
some employees have individual employment contracts that guarantee them a certain term of employment
if you work in a unionized workplace with a collective bargaining agreement, your employer might be able to terminate you only for “just cause” or “good cause”

But even if you’re not protected by a statute like the Civil Rights Act of 1964 or the Wisconsin Fair Employment Act, and even if you aren’t protected by an individual employment contract or a collective bargaining agreement, you might be protected by what courts call “public policy.”

The Public-Policy Exception

To have a claim for wrongful termination under the public-policy exception, an employee must do two things: 1. First, she must identify a “fundamental and well-defined public policy” at issue in her termination. Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 573, 335 N.W.2d 834 (1983). But what is “public policy”? It’s not just what an employee—or even a judge—thinks is a good idea. The basic idea is that the public policy of the state must be found in state law—that is, the Wisconsin constitution, state statutes passed by the legislature, and administrative rules written by state agencies. 2. Second, the employee must show either that: a. she was fired because she refused a command by her employer to do something that went against public policy; or b. she was fired because she did something that public policy required her to do. The public-policy exception doesn’t protect a worker who was fired for voluntarily doing the right thing, such as filing a complaint about plant safety or suggesting ways to improve workplace efficiency. For example, under the first category, the Wisconsin Supreme Court considered the case of a credit-union employee who was fired after she refused to repay the credit union for a forged check that she had cashed. Wandry v. Bull’s Eye Credit Union, 129 Wis. 2d 37, 384 N.W.2d 325 (1986). The court held that the employee had a claim for wrongful termination because the credit union’s order to repay the amount of the check went against the public policy found in a Wisconsin statute that prohibits employers from making deductions from employees’ wages for their mistakes. Under the second category, the Wisconsin Supreme Court considered two nursing-home employees who said that they had been terminated in retaliation for filing reports regarding neglect and abuse of nursing-home residents. Hausman v. St. Croix Care Center, 214 Wis. 2d 655, 571 N.W.2d 393 (1997). The court noted that Wisconsin law requires nursing-home workers to report resident abuse and neglect—in fact, nursing-home workers who knowingly allow abuse or neglect to occur may face criminal penalties. So the court held that the workers had a claim for wrongful termination because they said that they had been fired for doing what the law required them to do.

What Remedies Are Available When a Firing Violates Public Policy?

If a court concludes that you were terminated in violation of public policy, the court can award you various remedies, with the goal of putting you in the same financial position as if you had not been fired. This goal is often called “making you whole.”

1. Back Pay

First, the court can award back pay—that is, the pay (including the value of benefits) that you would have received if you had not been terminated and stayed in your old job, up to the date of the court’s judgment. If you were able to find other work after being fired, your damages will probably be reduced by the pay you receive in your new job. If you failed to look for other work, or turned down a job that was offered to you, the employer will try to persuade the court that you failed to mitigate your damages, meaning that your damages should be reduced because you didn’t make a good-faith effort to find new work. In other words, the employer’s argument will be that part of your damages are your own fault and shouldn’t be paid by the employer.

2. Reinstatement

Second, the court can order that the employer reinstate you, or give you your old job back.

3. Front Pay

Third, if the court concludes that reinstatement is not feasible (for example, if your old job is not available, or if the employer refuses to rehire you), the court may award you front pay instead of reinstatement. Front pay is simply the pay that you would have received if the employer had rehired you, beginning on the date of the court’s judgment and going forward. Compensatory damages (such as damages for emotional pain and suffering) and punitive damages (damages meant to punish a defendant for bad conduct) are sometimes available in employment discrimination cases, but these damages are not available in Wisconsin public-policy termination cases.

A Hawks Quindel Attorney May Be Able to Help

The attorneys at Hawks Quindel, S.C. have extensive experience helping Wisconsin employees understand and enforce their legal rights, including employees who have been wrongfully discharged. If you have been fired and think that the termination might have violated public policy, contact Hawks Quindel, S.C. to schedule a consultation with one of our experienced employment attorneys.