Gesina Seiler
Gesina Seiler

You Can’t Just Fire Everyone… But Almost

June 8, 2009

What is the Brockmeyer Exception?
Wisconsin is an employment-at-will state, meaning you may fire an employee who doesn’t have an employment contract for good cause, for no cause, or for a cause that is morally wrong without legal consequences, so long as you haven’t violated some other protection afforded by state or federal law. Wisconsin, though, recognizes a narrow exception to the employment-at-will doctrine that prohibits you from firing someone who refuses to perform an act that violates a clear mandate of public policy. To sue for wrongful discharge based on public policy, an employee must identify a constitutional, statutory, or administrative provision that clearly articulates a fundamental and well-defined public policy and then demonstrate that his discharge occurred because he refused to violate it.

The courts have somewhat expanded the scope of the public policy wrongful discharge claim. Under limited circumstances, an employee who reports a violation of law may be protected against being fired. However, the courts have repeatedly stated that limited exception to at-will employment is not intended to be a general whistleblower exception, and they are still defining when a whistleblower-type situation fits within the public policy exception to at-will employment.

The courts have also allowed employees to make constructive discharge claims under the public policy exception. A constructive discharge occurs when you make someone’s working conditions so intolerable that a reasonable employee would feel compelled to resign rather than continue working. The courts have been cautious in concluding that an employee has met her burden of showing she in fact was constructively discharged.

Bottom Line
Be very careful when you fire an employee who may have refused to perform an act that violates state or federal law. Although Wisconsin courts have repeatedly noted the narrowness of the public policy exception to the employment-at-will doctrine, hard facts get a lawsuit before a jury. Jurors don’t like employers they suspect of firing someone for refusing to violate the law.

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