ANALYSIS OF FEBRUARY 23, 2017 SUPREME COURT OPINION
(Posted February 23, 2017) Today’s lone published opinion from the Supreme Court, Francis v. NACCAS, gives us further definition of the contours of the Bowman v. State Bank of Keysville doctrine.
NACCAS hired Francis in March 2014. Less than a year later, she endured a heated encounter with a coworker, in which the coworker threatened Francis with bodily harm. The company’s HR Director met with the two and basically told them both to behave, but the company didn’t investigate the incident. The Director later sent Francis a summary of the event that pointedly omitted any reference to any misbehavior by the coworker.
Francis decided that since the company wasn’t going to protect her, she needed to look out for herself. She went to court and obtained a preliminary protective order against the coworker. That order prohibited “acts of violence, force, or threat.” The next week, a police officer showed up at the office and served the order on the coworker. A few days later, the HR Director told Francis to clean out her desk and leave.
Francis claimed that she was fired in violation of Virginia’s public policy, as set out in the statutes relating to protective orders. The trial court sustained a demurrer, but the justices granted a writ. Today, they unanimously affirm.
This opinion lists the three recognized types of Bowman exceptions to Virginia’s approach to at-will employment, and explores two of them in the context of this appeal.
- The first type of exception (today’s opinion calls it Scenario 1) is where “an employer violated a policy enabling the exercise of an employee’s statutorily created right.” This is a pure Bowman claim.
- The second type, Scenario 2, is where the employee is clearly a member of a class of persons expressly protected by a statute.
- The third, Scenario 3, arises where the employer fires the employee for his or her refusal to engage in a criminal act.
Future litigants would be well-advised to make note of these three categories, because while the court doesn’t come out and say there will be no more entries in the list, it’s clear that the justices view this as the relevant playing field for now. I expect the categories to be described henceforth as, for example, “a Bowman Scenario 2 claim.”
Scenario 3 doesn’t arise here, but Francis felt that 1 and 2 both applied to her. The justices disagree, holding that while the protective-order statutes do contain a public-policy component, there’s no allegation that “the termination of employment itself violated the stated public policy of protection of health and safety.”
I invite you to note the contrast between this claim and Bowman itself. In that case, Bowman worked at a bank and owned some of its stock. With a shareholders’ meeting looming, the bank directed her to vote her shares a certain way. Bowman refused, saying that the stock was hers and so was her vote. The bank’s ensuing decision to fire her trampled on the unfettered right of stockholders to vote without compulsion of fear of reprisal.
I sense that today’s ruling will do two things. The first is noted above; it will classify Bowman claims for future litigation. Francis will be cited numerous times for that alone. Second, it will probably narrow somewhat the opening that Bowman created. Virginia remains committed to the principle that an employee can quit at any time, so in fairness, an employer can fire her at any time, too. The employer doesn’t have to have a good reason, any more than an employee needs a good reason to leave.
One last point: If you’re tempted to conclude based on the fact pattern that the employer here is a bunch of ratfinks, keep in mind that those facts are as asserted in the amended complaint. We don’t have the employer’s side of the story, or the coworker’s.