The Tennessee Court of Appeals has held, in a case of first impression, that an employer may not terminate employees because they exercise a specific constitutional right – the right to petition the government. This has the potential to be a Very Big Deal – Smith v. BlueCross BlueShield of Tennessee, Court of Appeals at Knoxville, June 9, 2023.
For our purposes, in the interest of brevity, the facts can be oversimplified. BCBST mandated COVID vaccinations for all employees. Heather objected on religious grounds. Heather wrote the members of the General Assembly expressing her opinion concerning the vax mandate and asking for legislative action. Her email explicitly said she was not speaking for or on behalf of BCBST. The email was forwarded to BCBST. Heather was terminated the next day.
Heather’s lawyers claimed she was terminated in retaliation for exercising her constitutional right to contact legislators. The claim was based on the judicially created “wrongful discharge in violation of public policy” cause of action.* BCBST moved to dismiss, saying basically that the constitutional right to petition government restricted only government action, not the actions of a private employer. And that is, in fact, what every law student learns in Constitutional Law in the first semester of law school. Heather’s lawyers certainly know this, and boldly and successfully moved forward anyway.
The trial judge, Chancellor Atherton of Hamilton County, granted the motion to dismiss. The chancellor said he did not think employers should be able to terminate employees for communicating with legislators. The chancellor went on to say that new “exceptions” to the employment at will doctrine must be created by the appellate courts or the legislature, and he did not have the power to do that. Heather appealed.
The Court of Appeals recognized that generally the rights recognized in the Tennessee Constitution restrict only the actions of the government, not private actors. The Court, however, noted that the Supreme Court’s opinion - addressing the judicially created cause of action for wrongful termination in violation of public policy - said that the claim can be presented where the public policy is “evidenced by an unambiguous constitutional, statutory or regulatory provision.” The Tennessee Constitution clearly says, at Article I, Section 23, that citizens have a right to “instruct their representatives.” So, while the Court of Appeals recognized that Tennessee courts generally have declined to find “public policy exceptions to employment at will in constitutional provisions,” the Court proceeded to do just that.
BCBST’s lawyers argued that creating this new legal claim would create a “flood of litigation.” The Court was unimpressed, saying:
It is exceedingly unlikely that courthouses in Tennessee will overflow with litigants suing their former employers for firing them for writing to the General Assembly. Such an effusion of civic mindedness, were it to occur, would in any event be grounds for commendation, not scorn.
The Court is probably right about that. That said, we should expect the employment plaintiffs’ bar to start filing claims alleging that an employee fired for speaking out on public issues in the workplace was wrongfully terminated. This decision opens the door to a whole new theory of liability for employers. The Court of Appeals, as is the custom of the appellate courts when creating new “exceptions” to the “employment at will” doctrine, asserted that employment at will “remains firmly established in this state.” With respect, most management side employment lawyers would disagree. In your correspondent’s opinion, no sensible employer would terminate an employee without some valid business reason that is easy to prove.
BCBST may ask the Tennessee Supreme Court to review this case. If so, the Supreme Court will decide whether to accept an appeal. This case is worth following very closely.
*Importantly, the Court of Appeals noted in its footnote 1 that the Tennessee Public Protection Act contains a provision eliminating the common law claim of wrongful discharge in violation of public policy where the employee claims she was terminated for refusing to participate or remain silent about illegal activities. Here, the employee didn’t claim that, so the statutory elimination of that judicially created exception to “employment at will” did not apply.
William A. "Zan" Blue, Jr. serves as principal executive to the Roundtable for member firm Constangy, Brooks, Smith & Prophete, LLP, where he is a Partner in the firm’s Nashville office. Zan was elected by our Roundtable membership to serve as our general counsel – a board director and member of the executive committee – for the 2023 board term.
Learn more about Zan and Constangy at William A. "Zan" Blue, Jr.: Constangy, Brooks, Smith & Prophete, LLP.