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Firing whistle-blower? Prepare for court

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Generally, Pennsylvania employees who aren’t union members or don’t have a written employment agreement are at-will employees who can be fired for any reason or no reason at all. There’s one major exception, of course: Employers can’t fire at-will employees because of their protected characteristics.

But there is a second exception gaining prominence in court cases—what’s called “wrongful termination in violation of public policy.” Here’s how that can play out.

Recent case: Marie, director of marketing for pharmaceutical company CSL Behring, was an at-will employee. She alleged that she was forced to quit after being targeted for harassment and increased scrutiny as punishment for whistle-blowing. Specifically, Marie said she refused to participate in meetings to discuss off-label marketing of several drugs used to treat bleeding because she believed the practice was unethical and possibly illegal under FDA and other rules.

She also alleged that she objected and refused to participate in alleged collusion between CSL Behring and another pharmaceutical company on drug sales.

When Marie sued, CSL Behring argued that she had no case because she had quit and had been an at-will employee.

Marie countered that she had been constructively and wrongly discharged in violation of public policy.

The court let her case move forward, since Penn­­sylvania allows wrongful-­discharge suits if an em­­ployee alleges she refused to commit an illegal act. The court reasoned that colluding with other companies might violate a Penn­­sylvania law (18 Pa. Cons. Stat. §4107) that prohibits deceptive or fraudulent business practices. Since Marie refused to participate, her discharge might have violated public policy. A jury will decide. (DiFiore v. CSL Behring, et al., No. 13-CV-05027, ED PA, 2014)

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