Is an employee covered by a collective-bargaining agreement entitled to an exception to the ‘at-will’ employment doctrine?

By: Rox Laird on November 6th, 2017

The Iowa Supreme Court will hear arguments on Nov. 13 in an appeal brought by a former state administrative law judge who contends she was fired for blowing the whistle on her boss for improperly influencing unemployment insurance appeals.

Susan Ackerman, an administrative law judge in the unemployment Insurance Appeals Bureau of Iowa Workforce Development for 15 years, was fired in 2015. The stated reason was misconduct, but Ackerman maintains she was fired in retaliation for her testimony before a legislative committee alleging that ALJs were pressured to decide unemployment cases in favor of employers.

Ackerman sued the State, arguing her termination violated her rights and state law. In the appeal to be heard by the justices next week, she is asking the Supreme Court to reverse a Polk County District Court judge’s ruling dismissing one of her claims in that suit – that she was illegally discharged in retaliation for her efforts to expose what she saw as the Workforce Development director’s abuse of authority.

The Supreme Court has recognized an exception to the doctrine that “at-will” employees generally may be fired without cause in cases where “the discharge would undermine a clearly defined and well-recognized public policy of the state,” such as protecting an employee who publicly exposes mismanagement or illegal activities by an employer.

The trial court held that this exception is not available to Ackerman, however, because she was covered by a collective-bargaining agreement as a member of the American Federation of State, County and Municipal Employees (AFSCME). That union’s agreement says the employer cannot take reprisal action against an employee for disclosing information “which the employee reasonably believes is evidence of a violation of law or rule, mismanagement, a gross abuse of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”

In a brief submitted to the Supreme Court, Ackerman’s legal counsel argues that just because the exception is made to the employment-at-will doctrine does not mean it is limited to at-will employees. “The Iowa Supreme Court has never held as much, nor has the Court ever listed being an at-will employee as an element of the claim,” her counsel argues.

“Employees subject to a [collective bargaining agreement (CBA)], such as Ackerman, should not be barred from pursuing a claim for wrongful discharge in violation of public policy merely because they are subject to a CBA,” the brief argues. “At the very least they should be allowed to plead the claim. Then, at the appropriate fact-finding stage of a case, a trial court would determine if in fact the CBA provides the same protections as afforded by the tort, thereby alleviating the need for access to the claim.”

The State, in a brief in support of Workforce Development submitted by Attorney General Tom Miller, disputes Ackerman’s reading of Supreme Court precedent, saying “this Court clearly and unequivocally recognized the wrongful termination tort as solely a limited and narrow exception to the employment at-will doctrine.”

The Attorney General says there is a good reason for that: “Employees covered under a contract have remedies not available to at-will employees: the ability to not only negotiate the circumstances under which a termination may occur, but also, to pursue remedies to enforce all expressed and/or implied terms of the contract.”

The appeal in Susan Ackerman v. State of Iowa is scheduled for argument at 9 a.m. Monday, Nov. 13. Go to On Brief’s Cases in the Pipeline page to read the parties’ briefs.

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On Brief is devoted to appellate litigation, with a focus on the Iowa Supreme Court, the Iowa Court of Appeals, and the United States Court of Appeals for the Eighth Circuit.
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