Missouri Supreme Court Recognizes the Public Policy Exception to the At-will Employment Doctrine

Michelle Fleshner was wrongfully terminated from her position at Pepose Vision Institute. The day before her termination, Ms. Fleshner received a phone call from the U.S Department of Labor seeking background information about Pepose to determine whether it failed to properly compensate its employees for overtime. The following morning, Ms. Fleshner immediately contacted her supervisor to tell him about her conversation with the investigator. The next day, Pepose terminated Ms. Fleshner’s employment. Ms. Fleshner sued Pepose asserting claims for wrongful termination of employment in violation of public policy and failure to pay overtime compensation in violation of Missouri law.

The Supreme Court of Missouri held that “[A]n at-will employee may not be terminated (1) for refusing to violate the law or any well-established and clear mandate of public policy as expressed in the constitution, statutes, regulations promulgated pursuant to statute, or rules created by a governmental body or (2) for reporting wrongdoing or violations of law to superiors or public authorities. If an employer terminates an employee for either reason, then the employee has a cause of action in tort for wrongful discharge based on the public-policy exception.”

The question then became which standard of causation was appropriate; the “exclusive cause” standard, the “because of” standard, or the “contributing factor” standard. Pepose argued that the trial court erred in instructing the jury that it had to find that Pepose terminated Fleshner “because she communicated with the United States Department of Labor.” Pepose argued that the appropriate causal standard was the more strict “exclusive cause” standard. The Court concluded however, that the exclusive causation standard is inconsistent with the proximate cause standard typically employed in tort cases. While prior cases indicated that “exclusive causation” is the appropriate standard for cases asserting retaliation in the workers' compensation statutory context, the Court determined that “exclusive causation” is not the proper standard for wrongful discharge based on the public-policy exception. Furthermore, the Court found that such a standard would result in an exception that fails to accomplish its task of protecting employees who refuse to violate the law or public policy.

Ultimately, the Missouri Supreme Court adopted the “contributing factor” standard noting that recent employment discharge cases articulate the “contributing factor” causation standard – whether an illegitimate purpose was a “contributing factor” in the employment decision – which was adopted in 2005 through MAI 31.24. This standard is used for cases filed under the Missouri Human Rights Act, which modifies the at-will employment doctrine similarly to the public-policy exception. Both types of cases turn on whether an illegal factor played a role in the employer’s decision to discharge the employee, and the evidence in both types directly relates to the employer’s intent or motivation.

Concluding, the Court held that:

[A]s used here, this Court cannot find error with the “because” instruction as it did not mislead, misdirect, or confuse the jury, nor did it prejudice the result. In the future, though, trial courts should use a modified MAI 31.24, applying the “contributing factor” analysis until this Court adopts a specific instruction for wrongful discharge based on the public-policy exception.

Fleshner v. Peopse Vision Institute, P.C., No. SC 90032 (Mo. 2010)
By: Christopher Fete, Saint Louis University School of Law