Wednesday, September 23, 2015

The difference between what is "legal" and what is "right"


In McGowan v. Medpace, an Ohio appellate court dismissed an ex-employee’s wrongful discharge lawsuit. The employee—a former executive director—claimed that she was fired in retaliation for reporting concerns about her predecessor’s prescription-writing practices, which she alleged constituted insurance fraud and compromised patient safety. The court, however, concluded that regardless whether the retaliation occurred, it did not permit her to pursue a lawsuit for wrongful discharge. According to the court, under Ohio law, to support a wrongful discharge claim one cannot rely on a public policy unless it imposed an affirmative duty on an employee to report a violation, prohibited an employer from retaliating against an employee who had reported a violation, or protected the public’s health and safety. The court concluded that none of Dr. McGowan’s alleged public policies met those criteria, and, therefore, she lost.

That’s the legal analysis. Some would say that the employer won on a technicality. I prefer to call it high-quality lawyering. Whatever your take, what is clear is that whether the retaliation occurred was irrelevant to the decision. 

Employers, do not read this case as a licence to retaliate. Instead, let it stand for a deeper, more meaningful lesson. Just because the law permits something does not make it right. Strive to be better than the law’s floor, if not because it is the right thing to do, then because this case could have just as easily gone another way with a different court or different panel of this court. Justice is fickle. Do right by your employees and, more often than not, everything else falls into place. Just because the law makes it legal doesn’t mean the law makes it right, right?

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