The common law doctrine of “employment at will” permits either an employer or employee to terminate the employment relationship at any time or for any reason. Maryland courts are reluctant to diminish employers’ decision-making discretion, but the a tort claim of “wrongful discharge” has been recognized in limited circumstances. The seminal case in Maryland is Adler v. Am. Standard Corp., 291 Md. 31 (1981). In Adler, an employee filed a wrongful discharge action alleging that he was terminated for reporting misuse of corporate funds and falsification of company financial documents to internal company officials.
Since recognizing the tort of wrongful discharge in Adler, Maryland courts have refined its requirements and scope on a case by case basis. Recently, in Parks v. Alpharma, Inc., __ Md. __, 2011 Md. LEXIS 449 (July 19, 2011), the Court of Appeals affirmed the trial court’s dismissal of the plaintiff’s complaint, holding that she had not stated a sufficiently clear public policy as the basis of her wrongful discharge claim.
Parks worked out of Alpharma’s Baltimore office, marketing prescription drugs throughout Maryland from 2001 until July of 2006, when she was fired. Parks’s complaint alleged that her termination was “in retaliation for her complaints about Alpharma’s illegal marketing activities.” The articulated public policy basis for her wrongful discharge claim was the Maryland Consumer Protection Act (MCPA), Md. Comm. Law. Art § 13-303 and the Federal Trade Commission Act (FTCA), 15 U.S.C. § 45 which prohibit “unfair or deceptive” acts or trade practices.
The Circuit Court for Baltimore City granted Alpharma’s motion to dismiss, holding that (like Adler) Parks had not complained of her concerns outside of Alpharma, but had only done so internally. The Court of Appeals took the case on its own motion, bypassing the Court of Special Appeals and affirming dismissal of the complaint – but on different grounds.
The Court of Appeals held that neither the MCPA or the FTCA provided a sufficient basis of public policy on which Parks could rest her allegations. Parks’s effort to rely on the FTC’s regulations also failed to sway the Court. In a concurring opinion, Judge Adkins agreed that Parks’s complaint should be dismissed but noted that “the majority leaves in a state of doubt the law regarding whether a whistleblower action requires external reporting. We resolved this issue in favor of internal reporting in Lark v. Montgomery Hospice, Inc., [414 Md. 215 (2010)] . . . .”
Judge Adkins’s first concern should get employers’ attention. Traditionally, “internal only” complaints have not been fodder for a wrongful discharge claim. The Lark case was brought under Maryland’s Health Care Worker Whistleblower Protection Act, which contained specific provisions about notice to the employer. But the Court did reject the argument that Lark was required to report the wrongful actions to external authorities to state a claim. It remains to be seen whether the Court would apply this reasoning beyond the healthcare setting