Legal Bulletins

Maryland’s highest court ruled that an at-will employee has no general right to consult with an attorney before responding to an adverse employment action. The plaintiff in Porterfield v. Mascari II was employed as an administrative assistant by a senior care center. After a series of performance problems, her supervisor issued a written “employee warning” and asked that she sign an acknowledgment that she had read and understood it. Porterfield took the warning home and on the following day, a scheduled day off, called her employer and said that she believed the warning contained libelous statements and she wanted to seek legal advice before responding. Later that day, the employer fired Porterfield.

Porterfield filed suit against her employer alleging that she had been wrongfully discharged. Maryland courts recognize the tort of wrongful or abusive discharge when an employee has been fired for a reason that violates a clear mandate of public policy and the discharge is because the employee refused to commit an unlawful act, because the employee performed an important public function, or because the employee exercised a statutory right or privilege.

In this case, Porterfield claimed that the clear mandate of public policy was the right of persons to be permitted freely to consult with an attorney concerning matters of importance to their lives, including matters related to their employment. The Court rephrased the question more narrowly as follows: “Is it a violation of public policy sufficient to support a wrongful discharge action in Maryland when an employer fires an at-will employee for stating her intent to seek advice from legal counsel before responding to an adverse employment evaluation?”

In a 4-3 decision, the Court held that Maryland does not recognize as a public policy that employees have the general right to consult with an attorney concerning employment matters. The Court rejected Porterfield’s arguments that it should uphold such a right when she was fired either because her employer felt that she would retain a lawyer and sue the employer for defamation arising out of the warning, or because the employer did not want to retain an employee who consulted an attorney regarding a work dispute. The Court noted that neither of these reasons would be inconsistent with the employer’s right to terminate an at-will employee.

The Court cited a prior ruling which held that ordinarily the firing of an at-will employee in retaliation for filing a lawsuit against the employer is not a wrongful discharge. The Court noted that “[i]t would be incongruous indeed to find that a termination allegedly resulting from a suggestion the employee may seek legal advice regarding an otherwise unprotected employment matter would be a violation of public policy when termination allegedly resulting from actually commencing suit, through counsel, against an employer has been found not to violate public policy.”

While the Porterfield case reflects judicial restraint in the area of wrongful discharge law, it should not be viewed as authorizing a free pass to employers to terminate an employee who consults with an attorney concerning any employment matter. Such consultations may be protected under the anti-retaliation provisions of various statutes; for example, when legal advice is sought concerning a possible violation of discrimination, workers’ compensation, or other statutes.