The Unemployment Compensation Retaliation Exception to "At Will" Employment

In my Penn State employment law class, we cover the Pennsylvania Supreme Court's decision in Weaver v. Harpster. The case demonstrates the strong presumption of "at will" employment in Pennsylvania - the idea that an employer can terminate an employee for any reason or no reason. Of course, there are some notable exceptions, most notably including anti-discrimination statutes, collective bargaining agreements, contracts, and public policy.

Public policy sounds like it might be pretty broad . . . except it's not. In Weaver, the employee worked for an employer that was too small to be covered by the anti-discrimination statutes. The Court told her (paraphrasing) "tough luck" when she tried to file a wrongful termination claim for sexual harassment that forced her to resign. Yup, even sex discrimination is not covered by the public policy exception to at will employment in Pennsylvania (although, to be clear, sex discrimination is expressly prohibited by statute, the PHRA, for employers with four or more employees).

So, what is? The Weaver opinion noted some exceptions, including retaliation related to worker's compensation claims and the following:

The old Centre County CareerLink, where
UC Referee hearings were held.

• Highhouse v. Avery Trans. (concluding that an employee was wrongfully discharged for filing an unemployment compensation claim);
• Kroen v. Bedway Sec. Agency (holding that an employee was wrongfully discharged for refusing to submit to a polygraph test); 
• Reuther v. Fowler Williams, Inc. (concluding that employee cannot be discharged for serving on a jury); and
• Novosel v. Nationwide Ins. Co. (holding that public policy was violated where the employee was discharged for refusal to participate in a lobbying effort).

Note Highhouse and the Unemployment Compensation retaliation exception. One semester, I had the following exchange with a student:

STUDENT: Don't you have to be unemployed to collect unemployment compensation?
ME: Yes....
STUDENT: How do you have a job to get fired from in retaliation for filing an unemployment compensation claim?
ME: Ummm, errr, well... uhhh... I don't know.

Admitting you have no clue is tough, so I set out to resolve this apparent dilemma. It turns out that the employee in Highhouse was something of a seasonal truck driver, and for a few months each year he would have little or no work. So, he filed for UC in the "off season." The employee claimed he was discharged (possibly constructive discharge) in retaliation for filing the UC claim. And, voila, this became one of the rare public policy exceptions to at will employment in Pennsylvania.

I imagine this exception is seldom-used. First, because of the point that my student raised - most people who file UC claims don't have a job from which to get fired. Second, recent changes to UC make it even harder for seasonal employees to qualify for benefits in the "off season." Third, I'm guessing it's difficult for an employee to establish a causal connection between an off-season UC claim and not receiving work the following season. Fourth and finally, employers know it's unlawful now (assuming they keep up with these things).