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A New Avenue for Retaliatory Discharge Claims

By Martha L. Boyd and Matthew C. Lonergan
April 28, 2008

As courts across the country continue to visit the issue of employment-at-will, the results show states continuing to chip away at the once mighty doctrine. Tennessee, which has been a long-standing observer of the employment-at-will doctrine, continues to hold firm, albeit not without some erosion of the doctrine. The theory of retaliatory discharge has become a commonplace cause of action in most employment lawsuits. However, a recent Tennessee decision opens the window a little further for plaintiffs seeking to establish a public policy argument in support of their wrongful discharge claim.

One of the numerous exceptions to the doctrine of at-will employment in Tennessee is the tort of retaliatory discharge. The four elements of a retaliatory discharge claim are: 1) an employment-at-will relationship with the employee; 2) the discharge of the employee; 3) the discharge resulted from the employee's attempt to exercise a statutory or constitutional right, or for some other reason that violates a 'clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision'; and 4) the employee's exercise of
protected rights or compliance with a clear public policy was a substantial factor in the employer's decision to terminate the employee. Crews v. Buckman Labs. Int'l, Inc., 78 S.W.3d 852, 857 (Tenn. 2002). The third element is often the most difficult for employees to establish; after all, who knows what a 'clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision' is, anyway?

Little v. Eastgate of Jackson

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