South Carolina, like many other states, adheres to the at-will employment doctrine, which allows an employer to terminate an employee for any reason or no reason at all. "An at-will employee may be terminated at any time for any reason or for no reason, with or without cause." Barron v. Labor Finders of S.C., 393 S.C. 609, 614, 713 S.E.2d 634, 636 (2011).
One exception to the at-will employment doctrine is the public policy exception. "Under the 'public policy exception' to the at-will employment doctrine, . . . an at-will employee has a cause of action in tort for wrongful termination where there is a retaliatory termination of the at-will employee in violation of a clear mandate of public policy." Id., 393 S.C. at 614, 713 S.E.2d at 636-37. "The public policy exception clearly applies in cases where either: (1) the employer requires the employee to violate the law, or (2) the reason for the employee's termination itself is a violation of criminal law." Id., 393 S.C. at 614, 713 S.E.2d at 637. Although the public policy exception is not limited to these situations, South Carolina's supreme court has not specifically recognized the exception's application in other situations. See Taghivand v. Rite Aid Corp., 411 S.C. 240, 243, 768 S.E.2d 385, 387 (2015).
In Donevant v. Town of Surfside Beach, Op. No. 5345 (S.C. Ct. App. filed Aug. 26, 2015), the South Carolina Court of Appeals held the trial court did not err in submitting Donevant's wrongful termination claim to the jury. Donevant worked for the Town as its building official. As the town's building official, she was required by law (a town ordinance that adopted portions of the International Building Code) to issue stop-work orders when, for instance, construction in the town is commenced without a permit. A building official who fails to issue a stop-work order upon determining a violation of the law can be disciplined by the State's licensing authority. Donevant asserted she was fired in violation of public policy for issuing a stop-work order on a construction project that did not have a construction permit. The jury found in favor of Donevant on her claim of retaliatory discharge.
On appeal, the Town asserted the trial court improperly submitted Donevant's claim to the jury because she was not subject to a criminal penalty. The Court of Appeals disagreed, noting South Carolina case law examining the public policy exception did not require a criminal punishment; rather, the exception is triggered when an employer requires an employee to violate the law. See Barron, 393 S.C. at 614, 713 S.E.2d at 637.
The Town also contended that because South Carolina's appellate courts had only previously applied the public policy exception to cases involving violations of criminal laws, the trial court should not have submitted Donevant's claim to the jury. Noting the South Carolina Supreme Court's holding in Barron, which overruled the Court of Appeal's prior opinion limiting the public policy exception to situations where the employer asks the employee to violate the law or the reason for the termination itself is a violation of criminal law," the Court of Appeals opted to take a more liberal approach to the public policy exception. Accordingly, the court held the trial court did not err in denying the Town's motion for a directed verdict because Donevant was fired for refusing to violate the law.
Tracking the court's prior decision in Antley v. Shepherd, the court reasoned Donevant was the only official in the Town with the authority to issue a stop-work order. This was unlike the situation in Antley, which did not provide the county tax assessor with the sole discretion to act. Further, when Donevant saw a violation of the building code, the law gave her no discretion and she was required to enforce compliance with the building code. In Antley, the county tax assessor was permitted to act, but the law did not mandate such action. The Court of Appeals concluded that the situation with Donevant fell squarely within the public policy exception because she was required by her employer to violate a law, and when she refused to do so, she was fired.
Providing yet another reason to affirm the trial court submitting Donevant's case to the jury, the Court of Appeals also held that Donevant presented a cognizable claim that she was fired in violation of a clear mandate of public policy. Examining provisions within Chapter 9 of Title 6 of the South Carolina Code, the Court of Appeals reasoned the General Assembly's use of the words "[t]he public policy of South Carolina" and the General Assembly's mandate that all municipalities enforce the building code, the Court of Appeals reasoned the General Assembly intended to make enforcement of the building code a public policy of this state.
A petition for rehearing is currently pending before the South Carolina Court of Appeals. Check out C-Track for more details.
Stay tuned for the Court of Appeals' decision addressing the petition for rehearing, and presumably, for a Petition for a Writ of Certiorari after that.