public policy exception in Missouri

2021To bring a wrongful-discharge action under the public-policy exception, the employee was 4 required to allege that the employer violated a “clear mandate of public policy [that] must be reflected ‘in the letter and purpose of a constitutional, statutory, or regulatory provision or scheme, in the judicial decisions of state and federal courts, in the constant practice of government officials, [or], in certain instances, in professional codes of ethics.’” Jones, 478 S.W.3d at 563 (quoting Delaney v. Signature Health Care Found., 376 S.W.3d 55, 56 (Mo. App. E.D. 2012)); Hedrick, 404 S.W.3d at 458

2020The Missouri Supreme Court has expressly adopted the following public policy exception to the at-will employment doctrine: "An 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." Id. at 92 .8 "If an employer terminates an employee for either reason, then the employee has a cause of action in tort f

2015The public-policy exception was articulated in 1985 by the Western District in Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859, 877-78 (Mo.App.W.D.1985), and not recognized by our Supreme Court until 2010, See Fleshner v. Pepose Vision Institute, P.C., 304 S.W.3d 81, 92 (Mo. banc 2010); Keveney v. Missouri Military Acad., 304 S.W.3d 98, 101 (Mo. banc 2010); Margiotta, 315 S.W.3d at 346 .

2015The public-policy exception was articulated in 1985 by the Western District in Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859, 877-78 (Mo. App. W.D. 1985), and not recognized by our 6 Supreme Court until 2010.

2020“In addition, Missouri recognizes the public-policy exception to the at-will-employment rule.” 5 Id. 5 Effective August 2017, a new “Whistleblower’s Protection Act,” section 285.575, purports by its terms “to codify the existing common law exceptions to the at-will employment doctrine and to limit their future expansion by the 3 Missouri courts have recognized four public policy exceptions to the to the at-will employment doctrine: (1) refusing to perform an illegal act or an act contrary to a strong mandate of public policy; (2) reporting the employer or fellow employees to superiors or third

2016The public-policy exception is narrowly tailored and prevents the termination of an at-will employee “for refusing to perform an illegal act or reporting wrongdoing or violations of law to superiors or third parties.” Id. “[A] wrongful discharge action must be based on a constitutional provision, a statute, a regulation based on a statute or a rule promulgated by a governmental body.

2010See Dake v. Tuell, 687 S.W.2d 191, 193 (Mo. banc 1985) (holding that the prima facie tort theory may not be used to circumvent the employment-at-will doctrine); Johnson, 745 S.W.2d at 663 (refusing to consider whether to create a public-policy exception to the employment-at-will doctrine because the employee did not implicate a constitutional provision, statute, or regulation based on a statute); Johnson v. Kraft Gen.

1998As we noted in Faust v. Ryder Commercial Leasing & Services, 954 S.W.2d 383, 389 (Mo.App.1997), although the Missouri Supreme Court has not specifically adopted the public policy exception to the employment at-will doctrine, it acknowledged that various court of appeals decisions had recognized a public policy exception in Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661, 663 (Mo. banc 1988), and Luethans v. Washington Univ., 894 S.W.2d 169 , 171 n. 2 (Mo. banc 1995), without overruling them.

2021To bring a wrongful-discharge action under the public-policy exception, the employee was 4 required to allege that the employer violated a “clear mandate of public policy [that] must be reflected ‘in the letter and purpose of a constitutional, statutory, or regulatory provision or scheme, in the judicial decisions of state and federal courts, in the constant practice of government officials, [or], in certain instances, in professional codes of ethics.’” Jones, 478 S.W.3d at 563 (quoting Delaney v. Signature Health Care Found., 376 S.W.3d 55, 56 (Mo. App. E.D. 2012)); Hedrick, 404 S.W.3d at 458

2020“In addition, Missouri recognizes the public-policy exception to the at-will-employment rule.” 5 Id. 5 Effective August 2017, a new “Whistleblower’s Protection Act,” section 285.575, purports by its terms “to codify the existing common law exceptions to the at-will employment doctrine and to limit their future expansion by the 3 Missouri courts have recognized four public policy exceptions to the to the at-will employment doctrine: (1) refusing to perform an illegal act or an act contrary to a strong mandate of public policy; (2) reporting the employer or fellow employees to superiors or third

2010The court of appeals, following Han-some and Crabtree, applied the “exclusive causation” standard to wrongful discharge under the public-policy exception in Lynch *93 v. Blanke Baer & Bowey Krimko, Inc., 901 S.W.2d 147 (Mo.App.1995).

2004See Lynch, 901 S.W.2d at 152 (plaintiff must establish an exclusive causal relationship between the discharge and the public policy violation).

2010See Dake v. Tuell, 687 S.W.2d 191, 193 (Mo. banc 1985) (holding that the prima facie tort theory may not be used to circumvent the employment-at-will doctrine); Johnson, 745 S.W.2d at 663 (refusing to consider whether to create a public-policy exception to the employment-at-will doctrine because the employee did not implicate a constitutional provision, statute, or regulation based on a statute); Johnson v. Kraft Gen.

1997However, it must be remembered that the Missouri Supreme Court has emphatically declared Missouri to be an employment-at-will doctrine state, Dake, supra, and Johnson, supra, and that the public policy exception to the doctrine, which was fashioned by the Missouri Court of Appeals and never expressly approved and adopted by the Missouri Supreme Court, is a narrow and limited exception, Adolphsen, 907 S.W.2d at 336 ; Cole, 884 S.W.2d at 21 ; Boyle, 700 S.W.2d at 878 , which should not be expanded without clear justification.

2015“The public-policy exception explicitly recognizes that an employee’s superiors can constitute the proper authority to whom to blow the whistle and that an employee who is fired for informing his superiors of wrongdoing by other employees is entitled to bring suit.” Id. (emphasis added) (citing Faust v. Ryder Commercial Leasing & Services, 954 S.W.2d 383, 391 (Mo. App.W.D.1997)).

2015“The public-policy exception explicitly recognizes that an employee’s superiors can constitute the proper authority to whom to blow the whistle and that an employee who is fired for informing his superiors of wrongdoing by other employees is entitled to bring suit.” Id, (emphasis added) (citing Faust v. Ryder Commercial Leasing & Services, 954 S.W.2d 383, 391 (Mo. App. W.D. 1997)).

2021To bring a wrongful-discharge action under the public-policy exception, the employee was 4 required to allege that the employer violated a “clear mandate of public policy [that] must be reflected ‘in the letter and purpose of a constitutional, statutory, or regulatory provision or scheme, in the judicial decisions of state and federal courts, in the constant practice of government officials, [or], in certain instances, in professional codes of ethics.’” Jones, 478 S.W.3d at 563 (quoting Delaney v. Signature Health Care Found., 376 S.W.3d 55, 56 (Mo. App. E.D. 2012)); Hedrick, 404 S.W.3d at 458

2015See Hedrick v. Jay Wolfe Imports I, LLC, 404 S.W.3d 454, 458 (Mo;App.W.D.2013) (Margiotta’s vague and- general statute rule applies to- the third category of the public-policy exception).

1997Baue Funeral Home, 370 S.W.2d 249, 254 (Mo.1963), and appeared to accept its expansion when in Johnson, supra, it referred to the exception, but did not condemn or overturn the appellate decisions expanding it.

1992Komm v. McFliker, 662 F.Supp. 924, 924-925 (W.D.Mo.1987); See also, e.g., Smith v. Baue, 370 S.W.2d 249, 252 (Mo.1963) (recognizing the public policy exception for an at-will employee).

1997The rationale for the public policy exception is that while there may be a right to discharge an employee at-will for no reason, “ ‘there can be no right to terminate ... for an unlawful reason or purpose that contravenes public policy.’ ” Petersimes v. Crane Co., 835 S.W.2d 514, 516 (Mo.App.1992).

1993See Luethans v. Washington Univ., 838 S.W.2d 117, 119 (Mo.App.1992); Petersimes v. Crane Co., 835 S.W.2d 514, 517 (Mo.App.1992); Rothweil v. Wetterau, Inc., 820 S.W.2d 557, 559 (Mo.App.1991); Crockett v. Mid-America Health Serv., 780 S.W.2d 656, 658 (Mo.App. 1989); Loomstein v. Medicare Pharmacies, Inc., 750 S.W.2d 106, 112 (Mo.App. 1988). *620 We hold that the public policy exception to the employment-at-will doctrine is alive and well.

2017In Keveney v. Missouri Military Academy, 304 S.W.3d 98, 103 (Mo. banc 2010), this Court held contract employees also can pursue a cause of action for -wrongful discharge in violation of public policy.

2015The public-policy exception was articulated in 1985 by the Western District in Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859, 877-78 (Mo.App.W.D.1985), and not recognized by our Supreme Court until 2010, See Fleshner v. Pepose Vision Institute, P.C., 304 S.W.3d 81, 92 (Mo. banc 2010); Keveney v. Missouri Military Acad., 304 S.W.3d 98, 101 (Mo. banc 2010); Margiotta, 315 S.W.3d at 346 .

2015Hughes v. Bodine Aluminum, Inc., 328 S.W.3d 353, 356 (Mo.App.

2012E.D.) (post-Fleshner case finding that the third category of the public policy exception exists for employees who were discharged for "participat[ing] in acts that public policy would encourage, such as jury duty, seeking public office, asserting a right to collective bargaining, or joining a union”); Hughes, 328 S.W.3d at 356 (post-Fleshner case finding that the third category of the public policy exception exists for employees who were discharged for "acting in a manner public policy would encourage”).

1995That doctrine states that “an employer can discharge—for cause or without cause—an at-will employee ... and still not be subject to liability for wrongful discharge.” Luethans v. Washington Univ., 838 S.W.2d 117, 119 (Mo.App.1992), (quoting Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661, 662 (Mo. banc 1988)).

1993See Luethans v. Washington Univ., 838 S.W.2d 117, 119 (Mo.App.1992); Petersimes v. Crane Co., 835 S.W.2d 514, 517 (Mo.App.1992); Rothweil v. Wetterau, Inc., 820 S.W.2d 557, 559 (Mo.App.1991); Crockett v. Mid-America Health Serv., 780 S.W.2d 656, 658 (Mo.App. 1989); Loomstein v. Medicare Pharmacies, Inc., 750 S.W.2d 106, 112 (Mo.App. 1988). *620 We hold that the public policy exception to the employment-at-will doctrine is alive and well.

1998Clark v. Beverly Enterprises-Missouri, supra, summarized four categories of cases in which Missouri has recognized the public policy exception to the employment-at-will doctrine; circumstances in which a discharged at-will employee has an action for wrongful discharge.

1997The significance of the public policy exception is that it protects “a myriad” of employees without the bargaining power to command employment contracts and are “entitled to a modicum of judicial protection when their conduct as good citizens is punished by their employers.” Clark, 872 S.W.2d at 525 .

2013Id.

2013See Kirk, 851 S.W.2d at 622-28 , and Hughes, 283 S.W.3d at 801 .

1993Crockett v. Mid-America Health Services, 780 S.W.2d 656, 658 (Mo.App.1989).

1993See Luethans v. Washington Univ., 838 S.W.2d 117, 119 (Mo.App.1992); Petersimes v. Crane Co., 835 S.W.2d 514, 517 (Mo.App.1992); Rothweil v. Wetterau, Inc., 820 S.W.2d 557, 559 (Mo.App.1991); Crockett v. Mid-America Health Serv., 780 S.W.2d 656, 658 (Mo.App. 1989); Loomstein v. Medicare Pharmacies, Inc., 750 S.W.2d 106, 112 (Mo.App. 1988). *620 We hold that the public policy exception to the employment-at-will doctrine is alive and well.

2015The elements of mail fraud under 18 U.S.C. § 1341 are “(1) a scheme to defraud by means of material false representations or promises, (2) intent to defraud, (3) reasonable foreseeability that the mail would be used, and (4) that the mail was used in furtherance of some essential step in the scheme.” United States v. Anderson, 783 F.3d 727, 750 (8th Cir.2015).

2015The elements of mail fraud under 18 U.S.C. § 1341 are “(1) a scheme to defraud by means of material false representations or promises, (2) intent to defraud, (3) reasonable foreseeability that the mail would be used, and (4) that the mail was used in furtherance of some 21 essential step in the scheme.” United States v. Anderson, 783 F.3d 727, 750 (8th Cir. 2015).

1994The significance of the public policy exception is that it protects “a myriad” of employees without the bargaining power to command employment contracts and are “entitled to a modicum of judicial protection when their conduct as good citizens is punished by their employers.” Sheets v. Teddy’s Frosted Foods Inc., 179 Conn. 471 , 427 A.2d 385, 388 (1980).

1994The significance of the public policy exception is that it protects “a myriad” of employees without the bargaining power to command employment contracts and are “entitled to a modicum of judicial protection when their conduct as good citizens is punished by their employers.” Sheets v. Teddy’s Frosted Foods Inc., 179 Conn. 471 , 427 A.2d 385, 388 (1980).

1997“Employees who do not have a contract for a definite period of time are considered ‘employees-at-will’ Amaan v. City of Eureka, 615 S.W.2d 414, 415 (Mo. banc 1981), cert. den., 454 U.S. 1084 , 102 S.Ct. 642 , 70 L.Ed.2d 619 (1981).” McCloskey v. Eagleton, 789 S.W.2d 518, 519 (Mo.App.1990).

1992McCloskey v. Eagleton, 789 S.W.2d 518, 520 (Mo.App.1990).

1985The second Missouri case to apply the public policy exception is Hansome v. Northwestern Cooperage, 679 S.W.2d 273, 275-76 (Mo.1984) (en banc).

1985The second Missouri case to apply the public policy exception is Hansome v. Northwestern Cooperage, 679 S.W.2d 273, 275-76 (Mo.1984) (en banc).

2013“In addition, Missouri recognizes the public-policy exception to the at-will-employment rule.” Margiotta, 315 S.W.3d at 346 (citing Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 92 (Mo. banc 2010); Adolphsen v. Hallmark Cards, Inc., 907 S.W.2d 333, 336 (Mo.App.

1997However, it must be remembered that the Missouri Supreme Court has emphatically declared Missouri to be an employment-at-will doctrine state, Dake, supra, and Johnson, supra, and that the public policy exception to the doctrine, which was fashioned by the Missouri Court of Appeals and never expressly approved and adopted by the Missouri Supreme Court, is a narrow and limited exception, Adolphsen, 907 S.W.2d at 336 ; Cole, 884 S.W.2d at 21 ; Boyle, 700 S.W.2d at 878 , which should not be expanded without clear justification.

2021To bring a wrongful-discharge action under the public-policy exception, the employee was 4 required to allege that the employer violated a “clear mandate of public policy [that] must be reflected ‘in the letter and purpose of a constitutional, statutory, or regulatory provision or scheme, in the judicial decisions of state and federal courts, in the constant practice of government officials, [or], in certain instances, in professional codes of ethics.’” Jones, 478 S.W.3d at 563 (quoting Delaney v. Signature Health Care Found., 376 S.W.3d 55, 56 (Mo. App. E.D. 2012)); Hedrick, 404 S.W.3d at 458

2017See Jones v. Galaxy 1 Marketing, Inc., 478 S.W.3d 556, 568 (Mo. App. E.D. 2015).

2015In Drummond v. Land Learning Found., an. employee complained of his suspicions of tax fraud “by the Evans brothers to the Evans brothers.” 358 S.W.3d 167 , 171 (Mo.App.W.D.2011).

2015Id.

2015Mail Fraud, 18 U.S.C. § 1341 , and Wire Fraud, 18 U.S.C. § 1343 Jones relies on Beasley, 713 S.W.2d at 559 , for the proposition that mail and wire fraud can support a cause of action for wrongful termination under the public-policy exception.

1992This district first applied the public policy exception to the employment at will doctrine in Beasley v. Affiliated Hospital Products, 713 S.W.2d 557 (Mo.App.1986).

1997In Westerhold v. Carroll, 419 S.W.2d 73, 81 (Mo.1967) our Supreme Court recognized a public policy exception to the general rule that no tort cause of action can arise from breach of a contractual duty without privity of contract.

1997In Westerhold v. Carroll, 419 S.W.2d 73, 81 (Mo.1967) our Supreme Court recognized a public policy exception to the general rule that no tort cause of action can arise from breach of a contractual duty without privity of contract.

1998Similarly in Olinger v. General Heating & Cooling Co., 896 S.W.2d 43 (Mo. App.1994), the plaintiff alleged that she had been fired for reporting to the FBI conduct by her employer which eventually resulted in the company’s conviction for mail fraud.

1998This narrow exception protects employees who do not have bargaining power to command employment contracts but are “entitled to a modicum of judicial protection when their conduct as good citizens is punished by their employers.” Clark v. Beverly Enterprises-Missouri, Inc., 872 S.W.2d 522, 525 (Mo.App.1994) (quoting Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471 , 427 A.2d 385, 388 (1980)). [Footnotes omitted.] Olinger v. General Heating & Cooling Co., 896 S.W.2d 43, 46-47 (Mo.App.1994).