A recent ruling has further chipped away at Mississippi’s at-will employment statute.
In Simmons v. Pacific Bells, L.L.C., a panel of the Fifth Circuit held that, in Mississippi, an employee can sue his or her employer for wrongful discharge if the employee is discharged for serving on a jury.
Mississippi is an at-will employment state, and, as such, an employee can be terminated for good reason, bad reason, or no reason at all, except those reasons declared legally impermissible. “Legally impermissible” has long been understood to refer to statutes that themselves contain a private right of action. An employee can also sue for wrongful termination under two narrow public policy exceptions: an employee cannot be fired for reporting or refusing to participate in an illegal act.
In its 2016 decision in Swindol v. Aurora Flight Sciences Corp., the Mississippi Supreme Court carved out another cause of action. The Court declared that an employee could not be fired for keeping a firearm in his or her locked vehicle on company property. This ruling was based on a Mississippi statute that provides that an employer cannot establish or enforce a policy prohibiting employees from keeping firearms in locked vehicles on company property. In Swindol, the Court held that the Mississippi legislature, through this statute, had independently declared terminating an employee for having a firearm inside his locked vehicle is legally impermissible. The Court came to this conclusion even though the statute did not create a private right of action.
In Simmons, the district court granted summary judgment for Pacific Bells after concluding that no private cause of action exists under the Mississippi statute prohibiting employers from retaliating against employees for jury service. Mississippi law prohibits employers from persuading or attempting to persuade any juror to avoid jury service or subjecting an employee to adverse employment action as a result of jury service. In reversing the district court, the Fifth Circuit panel, making an Erie guess based on Swindol, concluded that the Mississippi legislature declared that terminating an employee for jury service is legally impermissible.
Mississippi’s at-will employment doctrine is slowly being chipped away by the courts. Simmons proves that, if Swindol is not overturned or limited, any statute that prohibits activity by an employer, whether or not it contains a private right of action, can become a cause of action for wrongful discharge. This result could effectively do away with Mississippi’s longstanding doctrine that an employee can be terminated for any reason.
Pacific Bells has filed a petition for rehearing en banc.