November 2013

By: Jennifer Adams Murphy, Esq.

A trial judge recently granted a motion to dismiss filed by our firm in a lawsuit filed by an employee against his former employer (our client). In the lawsuit, the employee, a truck driver, alleged breach of contract and tortious interference claims.

Specifically, the employee alleged that his employment was not at-will due to the employer’s written disciplinary policy regarding accidents as well as its alleged practice of providing progressive discipline. The employee also claimed that the employer had tortiously interfered with the employee’s future job opportunities by disclosing to prospective employers that the employee had failed to comply with post accident procedures.

The court dismissed the breach of contract claim finding that the employee’s employment was at-will. The trial court rejected the employee’s claims that the accident policy and alleged progressive discipline gave the employee a contractual right to continued employment. The court agreed with our argument that the employee’s claims failed to overcome the presumption of at-will employment status. Interestingly, the court also agreed with our position that a conspicuously placed disclaimer of contract in the employer’s employment application precluded the employee from reasonably believing that he had an enforceable contract of employment.

Finally, the court accepted our argument that the employer’s response to an inquiry from a prospective employer was made in good faith. The court therefore found that the disclosure was protected by the Federal Motor Carrier regulations which (where applicable) require the disclosure of former employees’ employment history and prohibit tortious interference claims arising from such mandated inquiries unless the disclosure is false and made with malice.

This case serves as a good reminder that employees may claim that they are not at-will even in the absence of a contract or employee handbook. Accordingly, this case also underscores that care must be taken to avoid policies or procedures that suggest a requirement of progressive discipline. Careful drafting of disciplinary policy language and disciplinary forms (as well as oversight of policy implementation) is critical on this point. Additionally, this case establishes the importance of a well-drafted disclaimer of a contractual relationship.

Finally, although in this case the employer was required by federal regulations to respond to an employment history inquiry, this case also serves as a reminder that strict adherence to a policy of only disclosing dates of employment and positions is important to avoid claims of tortious interference from former employees.

Questions? Contact Attorney Jennifer Adams Murphy of the St. Charles, IL office at (630) 377-1554 or jemurphy@wesselssherman.com.