"Wrongful discharge” is a term that is used to describe a variety of different types of claims under the law. Most theories of wrongful discharge are based on state laws, which vary and that change from time to time.
Wrongful discharge” is a concept about which there is much misinformation and confusion in recent years. Many people misunderstand concepts such as “employment at-will” or “right to work” and make false assumptions about whether they be fired lawfully under the circumstances.
The term “right to work,” really does not have anything to do with the typical termination decision.
“It involves the basic right in South Carolina to work without having to join a union or pay union dues. What most people mean when they say “right to work” is “employment at-will.” Many people say that South Carolina is an employment at-will state. In fact, South Carolina is not much different than other states in terms of how it applies the employment at-will doctrine.
Employment at-will is a rather simple concept that means two things: (1) an employee may quit his or her employment at any time and for any reason otherwise restricted by contract; and (2) an employer may terminate the employment relationship at any time and for any reason. But there are several important exceptions. An employer may not fire an employee “at will” if:
- there is an implied or express contractual agreement;
- the employee has provided “independent consideration” for the employment;
- the termination would violate some other law, such as a discrimination, whistleblowing, or anti-retaliation statute; or
- the termination violates a clear mandate of public policy (usually a policy found in a regulation or statute).
Implied or Express Contracts
Individual oral and written promises to employees may be enforceable and may counter the notion that the employer has reserved the right to terminate employment at will. There has been much litigation over the issue of when an employer’s policies or oral promises are binding as contractual obligations. These often arise where an employee claims that the employer did not follow progressive discipline or that there was some other oral or written promise made that the employer failed to live up to.
In 2004, the South Carolina legislature passed a new law that governs in this area for newer policies. The courts also are regularly revisiting this issue and providing new guidance. Whether an employer’s oral or written promises or policies can be grounds for a wrongful discharge action is very fact-specific and can only be discussed in any helpful way after a thorough review of the particular facts of your situation.
The presumption that an employee may be terminated at will does not apply if the employee provided consideration in addition to the services rendered. For example, if the employee abandoned an established business to join the employer, he or she may be able to rebut the notion that employment may be terminated at the will of the employer. The normal inconveniences and giving up of a good life elsewhere to relocate is not itself enough consideration to overcome the at-will rule in South Carolina.
As discussed throughout this site, there are numerous laws that impact upon an employer’s right to terminate an employee. These laws supersede or override the notion of “at will” employment. Typical examples are the discrimination laws and their anti-retaliation provisions as well as other laws that protect employees from making both internal and external complaints of wrongdoing (i.e. some forms of “whistle blowing”).
Public Policy Exception
South Carolina recognizes a “public policy” exception, which precludes employers from firing employees if the reason for doing so violates a clear public policy. What the courts recognize as violations of public policy, however, does not include everything that is unfair or morally wrong. Instead, an employee typically must show that he or she was legally required to do the act that led to discharge, that there is some law prohibiting the employer from discriminating against the employee for the reason it did, or some other reason that is as offensive or compelling as a matter of public policy under certain circumstances.
Stephenson & Murphy, LLC represents employees and employers in wrongful discharge or wrongful termination cases. To consult with a wrongful discharge lawyer, contact Stephenson & Murphy, LLC.