Wandry v. Bull's Eye Credit Union , 129 Wis. 2d 37 ( 1986 )

STEINMETZ, J.

(dissenting). The majority extends Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 335 N.W. 2d 834 (1983), to a point beyond which the court intended by that decision. The majority reaches this result by construing the public policy of a statute to be broader than the unambiguous language of the statute. The majority specifically states:

"Brockmeyer does not require that the discharge violate a statute to constitute a claim for wrongful discharge. Brockmeyer requires only that the discharge contravene the public policy evidenced in the statute. The public policy of a statute is not limited to the circumstances described in the statute. The public policy of a statute may be invoked in contexts outside the precise reach of the statute." At 46-47.

The majority also states: "Ordinarily the statute does not expressly state the public policy underlying the enactment of the statute." At 42. While this statement may be technically correct, it does not mean that this court should establish a public policy broader than the statute's content.

The majority makes an extension of Brockmeyer which I would not make. I would construe the public policy of a statute to be limited to the unambiguous circumstances covered by the statute. I would further hold that sec. 103.455, Stats., does not prohibit an employer from requesting an employee to make reimbursements for employer losses, when enforced by the threat of termination. Accordingly, I would dismiss the complaint.

In Brockmeyer, the court did not define the public policy of a statute to be broader than the literal proscriptions of the statute. We made quite clear that an employer violates public policy by contravening a statutory or constitutional provision or by requiring an employee to violate a statute or constitutional provision. The limited scope of this exception to the employment at will doctrine, as recognized by the public policy exception, is clearly stated in Brockmeyer:

"Given the vagueness of the concept of public policy, it is necessary that we be more precise about the contours of the public policy exception. A wrongful discharge is actionable when the termination clearly contravenes the public welfare and gravely violates paramount requirements of public interest. The public policy must be evidenced by a constitutional or statutory provision. An employee cannot be fired for refusing to violate the constitution or a statute. Employers will be held liable for those terminations that effectuate an unlawful end." Id. at 573.

In fact, I do not believe that the policy of a statute ever can be broader than the conduct which the statute prohibits or requires. Public policy reflects the conduct required by a statute. The public policy of a statute therefore is equivalent to the legislature's intent when enacting it. Thus, this court construes statutes to implement the intent of the legislature. As a result, the legislative intent, or purpose, of a statute defines the scope of the effect of the statute. Conduct not required or prohibited by a statute by definition does not reflect public policy. This conclusion is self-evident from the fact that conduct not within the scope of a statute is not illegal. Finally, I believe that Brockmeyer clearly intended the public policy exception to the employment at will doctrine to correlate with the legislative intent of a statute. We stated as much when we limited employer liability to terminations that "effectuate an unlawful end." Id.

Bull's Eye's liability for Wandry's termination, therefore, depends on whether sec. 103.455, Stats., prohibits an employer from requesting an employee to compensate the employer for bad checks accepted by the employee, upon threat of job termination. The majority does not resolve this question, although the opinion intimates that Bull's Eye's conduct does not violate the statute. The majority avoids this issue by concluding that whether Bull's Eye's conduct comes within the scope of sec. 103.455 is not determinative of whether there was a wrongful discharge. At 47.1 believe, however, that this issue is dispositive on the merits of this case.

Section 103.455, Stats., prohibits employers from deducting earned wages without giving employees a prior opportunity to determine whether the employee caused the employer to suffer an economic loss. The statute, however, does not limit an employer's right to. terminate an employee prospectively when the employer believes that the employee is a source of loss, or otherwise not a good employee. As long as the employer does not deduct accrued wages, the employer is free to deal with the employee's future employment as it deems appropriate. Section 103.455 protects vested interests in past earned income. The statute, however, does not confer job security. As a result, an employer does not violate the statute unless it withholds wages without the prior consent of the employee. See Zarnott v. Timken-Detroit Axle Co., 244 Wis. 596, 600, 13 N.W. 2d 53 (1944), in which the court stated that the purpose of the statute is to prohibit an arbitrary determination by the employer that no compensation is due; see also Donovan v. Schlesner, 72 Wis. 2d 74, 240 N.W. 2d 135 (1976). An employer certainly can terminate an employee prospectively without having to prove the employee's fault in causing employer loss.

I do not believe that sec. 103.455, Stats., which permits employee terminations without proof of just cause, prohibits an employer from giving an employee a choice between termination and reimbursement for employer losses. Such an option gives the employee an opportunity for future employment which otherwise would not exist. The employer otherwise would simply terminate the employee without granting any opportunity to avoid such a fate in that case. By contrast, the employee controls his own fate in this case. If the employee considers the requested reimbursement fair, he can pay it and continue his employment. If the employee disagrees with the assessment, he can retain his wages and seek other employment. Under the latter scenario, the employee gets the benefit of sec. 103.455 by retaining his past earned wages. He does not have the added job security which results from requiring just cause as a condition of firing. Section 103.455, however, was not intended to grant job security.

I disagree with the majority's construction of the purpose of sec. 103.455, Stats. The majority states that the purpose of the statute is to proscribe "economic coercion by an employer upon an employee to bear the burden of a work-related loss." At 47. Under the majority's economic coercion test, an employer cannot terminate an employee without proving just cause when the employer believes the employee is a source of loss. If the employer permits the employee to avoid termination by agreeing to reimburse the employer for loss, under the majority's analysis this constitutes economic coercion. I do not believe that it makes any substantive difference under the majority's analysis whether the employer expressly makes reimbursement a condition of future employment or operates with an unspoken agreement that reimbursement will prevent termination. Either situation effectively would constitute "coercion," although one form is more subtle than the other. The only way an employer could avoid such coercion is by absolutely refusing to allow reimbursement for losses. Section 103.455, however, clearly does not prohibit employees from agreeing to make reimbursement. The statute expressly permits reimbursement when the "employee authorizes the employer in writing to make such deduction."

The artificiality of the majority's analysis is indicated by the fact that other employers still can terminate employees without proving just cause when the employer believes that the employee is a source of economic loss. The only limitation on this right is that the employer cannot be willing to accept reimbursement for such losses as a condition of future employment. Under this analysis, Bull's Eye can terminate Wandry again after this proceeding is complete if she accepts further worthless checks. The reason such a subsequent termination would be acceptable is because the termination would be based on the employer's belief that Wandry caused economic loss, rather than her refusal to make reimbursement. That the majority opinion permits this result indicates that the holding in this case is based on an insubstantial distinction. The majority relies on the fact that Bull's Eye requested reimbursement. Failure to make reimbursement, however, is simply another way of stating that the employer believed that the employee caused economic loss. Because an employer can terminate an employee without proving such állegations, I believe that Bull's Eye can terminate Wandry if she does not agree to reimburse the employer for worthless checks.

I believe that the majority's extension of Brock-meyer destroys the balance established in that case between the interests of employees, employers and the public. We stated in Brockmeyer, 113 Wis. 2d at 574, that:

"We believe that the adoption of a narrowly circumscribed public policy exception properly balances the interests of employees, employers and the public. Employee job security interests are safeguarded against employer actions that undermine fundamental policy preferences. Employers retain sufficient flexibility to make needed personnel decisions in order to adapt to changing economic conditions. Society also benefits from our holding in a number of ways. A more stable job market is achieved. Well-established public policies are advanced. Finally, the public is protected against frivolous lawsuits since courts will be able to screen cases on motions to dismiss for failure to state a claim or for summary judgment if the discharged employee cannot allege a clear expression of public policy."

Today's holding destroys the proper balance by opening the courts to every termination based on economic loss to the employer. To state a claim, the employee only has to allege that the termination would not have occurred if the employee had offered to reimburse the employer for such losses. Under the majority's analysis, such an allegation would satisfy the "economic coercion" requirement for a wrongful discharge. The employer then could only prevail by proving that it would have refused reimbursement and would have discharged the employee regardless of such an offer. Because an employee has the right to reimburse, however, no employer would absolutely refuse such an offer. Such an attitude would be irrational and I do not believe employers are so irrational. Thus, the majority essentially establishes a standard which prohibits employers from discharging employees without proving just cause.

The majority decision ignores Brockmeyer's statement that it is the public policy of the constitution and legislation that will be enforced by the law of unlawful discharge. Instead, the court will now determine the "spirit" of constitutional provisions and legislation, and as a result, the court will set public policy. We declined to do that in Brockmeyer and I would consistently decline to do that in this case.

To summarize, I would conclude that Wandry was an employee at will of Bull's Eye. I disagree that Bull's Eye violated the public policy of sec. 103.455, Stats., which only prohibits employers' from deducting accrued wages. The statute does not prohibit employers from prospectively terminating employees. Bull's Eye may have acted harshly by discharging Wandry, but that was its prerogative. Accordingly, I would affirm the court of appeals which correctly applied the rule of Brockmeyer and the law of this state to the facts of this case.