Hausman
v. St. Croix Care Center: Stretching the Employment-At-Will
Doctrine
The Defendant's Perspective
Hausman Further Guts Wisconsin's
Employment-at-will Doctrine
by Katherine L. Williams
Contrary to the plaintiffs' perspective, Hausman was one of
those cases where the court fashioned a remedy to address the specific
situation presented by the plaintiffs in that case. Even though there
was a statutory penalty for discharging employees who reported nursing
home resident abuse or neglect, the court dismissed that remedy as
inadequate, and refused to wait for the legislature to close the
statutory loophole in the Wisconsin statutes.1 (Please see the accompanying
sidebar.) Instead, while the plaintiffs in Hausman had
clearly not stated a cause of action for wrongful discharge as that
cause of action had been fashioned by the court in Bushko, the
court found a way to recognize a cause of action for wrongful discharge
under the facts and circumstances of the Hausman case. What is
troublesome for employers is what comes next with respect to wrongful
discharge. Over the past decade, the court has slowly chipped away at
the narrow public policy exception to employment-at-will, and
Hausman represents yet another step toward a broad
whistle-blower exception to employment-at-will in Wisconsin.
Prior to Hausman, the cause of action for wrongful discharge
was predicated upon an employee's refusal to obey an employer's command
to violate a public policy as established by a constitutional or
statutory provision.2 Shortly after
Bushko v. Miller Brewing Co. was decided, the court extended
the wrongful discharge rule to include discharges that violated the
spirit, as well as the letter, of a statutory provision.3 Six years later, in Winkleman v. Beloit
Memorial Hosp., the supreme court expanded the wrongful discharge
exception to employment-at-will to include employees discharged based
upon the violation of a public policy established by a regulation, as
opposed to a statutory or constitutional provision.4 Thus, by the time the Hausman case
reached the Wisconsin Supreme Court in late 1997, Wisconsin employers
had witnessed a slow and steady expansion of the terms and conditions
under which the court would recognize a wrongful discharge claim.
At first reading, Hausman appears to be limited to the
specific fact situation presented in that case. However, as plaintiffs'
counsel indicates, there is no reason to limit the court's holding to
nursing home employees who report resident neglect or abuse. The
troublesome language in Hausman is the court's statement that
"[t]he employer's personnel decisions are not impermissibly interfered
with by a requirement that the employer not retaliate against an
employee complying with the dictates of a fundamental public policy
statement."5 In Hausman, the court
viewed the plaintiffs' legal obligation under Wisconsin Statutes section
940.293(3)6 to report resident neglect
or abuse as a "sufficiently certain" public policy to allow courts to
easily identify covered cases, and thus, the court reasoned that
employers will be protected from having every termination decision
subjected to court scrutiny.7
Precedent does not support this view. The cause of action for
wrongful discharge, as first recognized, required an employee to
identify a public policy as established by a constitutional or statutory
provision. This requirement was then lessened in Wandry to
permit an employee to invoke a public policy "outside the precise reach
of the statute."8 In Hausman, the
"precise reach" of the statute relied upon by the plaintiffs was
relatively clear. However, if the Wisconsin courts are permitted to
consider the spirit and intent of a statute, regulation, or
constitutional provision in determining the public policy contained
therein, and if an employee need no longer refuse an employer's express
command or request to violate that public policy in order to state a
cause of action for wrongful discharge, then the Pandora's box
referenced in Brockmeyer and Bushko has indeed been
opened.9
It is the elimination of the requirement that an employee be
discharged for refusing a command to violate a public policy that is the
most troublesome aspect of the Hausman decision for Wisconsin
employers. Although the court reaffirmed its stance that an employee's
conduct must be more than merely praiseworthy to state a claim for
wrongful discharge, the court admittedly went beyond the four corners of
Bushko in recognizing a cause of action for wrongful discharge
in Hausman, and held that an employee has a cause of action for
wrongful discharge when the employee is discharged for fulfilling an
affirmative obligation under the law. If this affirmative obligation, or
this public policy, can be invoked outside the precise reach of the
statute, then any employee who has acted in accordance with the public
policy of a statute can at least assert a claim that he/she has an
affirmative obligation to do so.
 Katherine L. Williams, Marquette
1987 magna cum laude, joined the firm of Beck, Chaet, Molony &
Bamberger S.C. of Milwaukee in 1986. Her practice is concentrated on
representing businesses in labor and employment-related matters. She is
a frequent speaker on topics related to management rights and
responsibilities. |
Contrary to the view of plaintiffs' counsel, the "floodgate" argument
in public policy cases that every termination will be open to court
scrutiny is not overblown. Under Bushko, an employee cannot
state a cause of action for wrongful discharge unless the employee can
establish that he or she was discharged for refusing to violate a
fundamental public policy. Under these circumstances, there is a nexus
between the employee's conduct and the discharge. If the employee's
conduct is merely consistent with public policy, and the employee is
later discharged by the employer for other reasons, which was the
employer's argument in Hausman, then there is no nexus between
the conduct and the discharge. Any employee who makes a complaint about
anything that can be remotely tied to public interest, health, or safety
would be able to assert a claim for wrongful discharge, even absent a
temporal proximity between the complaint and the discharge. As the court
noted in imposing the refusal of a command requirement in
Bushko, if intent becomes an inquiry, the courts will not be
able to routinely screen these cases, or dispose of them on summary
judgment, as there would always be a question of fact as to the reason
for the discharge.10
The Hausman decision has clearly opened the door to a
further evisceration of employment-at-will in Wisconsin. While it
remains to be seen how expansively the court interprets its latest
exception to employment-at-will, the Hausman decision will
obviously result in more wrongful discharge claims, and Wisconsin
employers need to be more aware of, and more sensitive to, situations
that may give rise to a "whistle-blower" type cause of action.
Endnotes
1 Hausman, 214 Wis. 2d 655, 670, 571
N.W.2d 393, 399 n.9 (1997).
2 Bushko, 134 Wis. 2d 136,
396 N.W.2d 167 (1986).
3 Wandry, 129 Wis. 2d 37,
384 N.W.2d 325 (1986).
4 Winkelman v. Beloit Mem'l
Hosp., 168 Wis. 2d 12, 483 N.W.2d 211 (1992).
5 Hausman, 214 Wis. 2d at 668, 571 N.W.2d
at 398.
6 Wis. Stat. section
940.923(3) provides:
"ABUSE AND NEGLECT; PENALTIES. (a) Any person in charge of or
employed in any facility or program ... who does any of the following,
or who knowingly permits another person to do so, may be penalized under
par. (b):
"1. Intentionally abuses or intentionally neglects a patient or
resident.
"2. Recklessly abuses or recklessly neglects a patient or
resident.
"Punishment for failure to act, be it through reporting or taking
some other form of action, ranges from a Class B misdemeanor to a Class
D felony."
7 Hausman, 214 Wis. 2d at 668, 571 N.W.2d
at 398.
8 Wandry, 129 Wis. 2d at
47, 384 N.W.2d at 329.
9 Brockmeyer, 113 Wis. 2d
561, 580, 335 N.W.2d 834, 843 (1983), (Day, J. concurring);
Bushko, 134 Wis. 2d at 146, 396 N.W.2d at 172.
10 Bushko, 134 Wis. 2d
at 141, 396 N.W.2d at 170.
Wisconsin
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