Fourth Circuit Reverses Decision Holding Employer's Promise Not to Retaliate Modified At-Will Employment, Rejects Breach of Contract Claim

Littler
Contact

On November 27, 2012, in Scott v. Merck & Company, Inc.,1 the U.S. Court of Appeals for the Fourth Circuit reversed a jury verdict of more than $500,000 in favor of Jennifer Scott, a former Merck & Co., Inc. employee. The appeals court concluded that the trial court erred in permitting Scott to argue that the company's non-retaliation policy included an enforceable promise not to terminate her employment. Specifically, the appeals court ruled that Scott could not reasonably have believed that the non-retaliation policy included a promise of continued employment, given the express at-will disclaimers contained in the employee handbook in which the non-retaliation policy appeared. 

In so ruling, the court of appeals rejected the trial court's conclusion2 that the company's non-retaliation policy "placed a specific limitation on Merck's otherwise unfettered power to end the employment relationship," and rejected the decision to allow a jury to decide whether Merck breached its supposed promise that it would not retaliate against an employee for reporting certain "important workplace and business issues" to management. 

Inasmuch as a second Maryland district court issued an almost identical decision earlier this year in Signoriello v. Motiva Company,3 the Scott decision is particularly welcome to Maryland employers who had grown uncertain as to the effectiveness of their at-will statements. Both decisions concluded that a statement that employment was "at-will" could not negate an arguably definite written promise not to retaliate against an employee for reporting alleged misconduct. 

Factual Background

Scott, who was hired as an at-will employee, worked as a pharmaceutical sales representative for Merck from 1992 to 2008. In 2005, Scott's supervisor instructed her to charge business expenses incurred by another employee on her credit card because the credit issuer would not issue the coworker a credit card under its lending rules. Scott agreed, albeit reluctantly, believing the arrangement would be temporary. As the requests continued, however, Scott discussed her concerns with her supervisor. The supervisor allegedly responded that Scott would be demoted if she did not continue allowing the charges. During the next year, Scott raised additional concerns with her supervisor relating to other practices and directives she believed were contrary to policy and/or federal regulations. Concurrently, her supervisor allegedly grew increasingly critical of her job performance. 

In July 2007, Scott reported her supervisor's actions to Merck's Ombudsman's Office and to its Office of Ethics. Shortly thereafter, she was placed on a performance improvement plan for reasons that Merck maintained were nonretaliatory. Over the ensuing months, Scott reported other issues to the Office of Ethics as it conducted an investigation into her supervisor's actions. 

In late 2007, Merck concluded that Scott's supervisor had in fact violated several policies and transferred him to a new position. Despite its findings regarding his policy violations, and the fact that he was no longer her supervisor, Merck allowed him to conduct Scott's 2007 performance evaluation. She was then fired in January 2008. 

Merck's "At-Will" Disclaimers and Anti-Retaliation Policies

Merck's employment application provided: "if [Merck] and I enter into an employment relationship, I understand that I have the right to terminate my employment at any time and for any reason and that Merck & Co., Inc. retains a similar right." 

Merck's "U.S. Managers' Policies" also contained the following at-will disclaimer:

Employment at Merck is at-will, which means that employees are not hired for a specific duration of time and that either Merck or the employee may sever the employment relationship at any time, for any reason, with or without notice. Furthermore, none of the Company's written or unwritten programs, policies or practices should be viewed as creating any promises or contractual rights to employment or to the benefits of employment. 

Despite these two at-will disclaimers, Scott argued, and the federal district court agreed, that two of Merck's policies modified the at-will employment relationship and created a binding contract. First, Merck's Code of Conduct provided: "We will not tolerate retaliation against any employee for raising a business practice issue in good faith. . . . The fact that an employee has raised concerns in good faith, or has provided information in an investigation, cannot be a basis for denial of benefits, termination, or demotion . . . ." (Emphasis added).

In addition, "Merck's Corporate Policy 57:  Retaliation" provided:  

Retaliation and threats of retaliation against employees who raise concerns, or against individuals who appropriately bring important workplace and business issues to the attention of management, are serious violations of Merck's values and standards and will not be tolerated . . . . All directors, officers, and employees are strictly prohibited from engaging in retaliation and retribution . . . which is directed against an individual on the basis of or in reaction to that individual making a good faith report to the Company . . . of suspected violations of law, regulations, policy, or procedures, or Our Values and Standards. 

Maryland's At-Will Employment Law

Under Maryland law, the general rule is that statements of policy in an employee handbook or other publication do not create an enforceable contract as long as they are not "offers" by which a company intends to be bound. An exception exists, however, if:  (1) the policy statements expressly limit the employer's discretion to terminate an individual's at-will employment; and (2) the employee justifiably relied on those representations. 

In this case, the district court found that Merck's policy statements were sufficiently definite and specific to create a binding offer. In that regard, one of Merck's anti-retaliation policies stated that, if an employee raises a concern in "good faith," the company "cannot" use that concern "as a basis for denial of benefits, termination, or demotion." Relying on those terms, Scott "accepted" the offer by reporting her supervisor's misconduct to management to her apparent detriment. Although the court recognized that Merck's policy was, in some sense, aspirational, the court noted that the policy also stated that retaliation is "unacceptable" and "will not be tolerated." 

The district court then concluded that the at-will disclaimers were insufficient to defeat Scott's reasonable expectation that Merck would not terminate her for filing an internal complaint against her supervisor because the policy itself contained a "specific benefit that clearly implicates grounds for termination."  

The Fourth Circuit Reverses the District Court's Decision

Ultimately, the U.S. Court of Appeals for the Fourth Circuit reversed the district court's decision because Scott could not, as a matter of law, demonstrate that her reliance was reasonable in the face of the at-will disclaimers. Specifically, the Fourth Circuit held that an at-will employee must show both that the policy statement upon which she relied limited the employer's discretion to terminate her employment and that she was justified in relying on that statement. 

Notably, it is not unusual for employer policies against retaliation to state clearly that an employer will not tolerate retaliation. For example, in Signoriello, Jr. v. Motiva Co., the employer's non-retaliation policy similarly provided: "You can be absolutely sure that retaliation of any kind directed against anyone who reports an issue concerning the Code of conduct will not be tolerated. Motiva will protect its employees against retaliation; in turn, it expects employees who know or suspect that retaliation has taken place to report it through the Helpline or directly to the Compliance Office." How then should an employee know when reliance on a non-retaliation promise is justified? 

When the promise not to retaliate exists alongside an unambiguous at-will disclaimer, the Fourth Circuit concluded that the at-will statement precludes justifiable reliance on the more specific policy statement, not the other way around. Significantly, citing Fournier v. U.S. Fidelity & Guaranty Company,4 the Fourth Circuit noted that under Maryland law it was immaterial that the at-will disclaimers appeared in locations apart from the non-retaliation policies. In other words, regardless of how definite a policy promise may seem, a clear statement that no promise of continued employment is intended by any such policy will prevail as a matter of Maryland law. 

After reviewing the two Merck disclaimers, the Fourth Circuit held that the "plain language of these policies demonstrates that Merck clearly and conspicuously informed Scott that her employment was at-will." Therefore, she could not maintain a breach of contract action against her employer following her termination. 

Lessons for Employers

Despite the apparent victory, a Maryland state court is not bound by a Fourth Circuit decision applying Maryland law, and arguments that an employer promised more than at-will employment could fall on more sympathetic ears in the Maryland courts. Maryland law requires an "unambiguous disclaimer" of any intent to create a binding contract, but, once such a clear disclaimer is made, reliance on written policies appearing to promise more will be unjustified. As always then, an employer would do well to draw its at-will employment policy to employees' attention, and to obtain acknowledgments whenever possible. 

Of course, a clear statement of at-will employment can limit only contract claims arising out of an alleged promise not to retaliate; regardless of any promise, many laws specifically prohibit employers from retaliating against individuals who report misconduct or suspected violations of the law, and each of those laws typically creates its own cause of action to enforce those anti-retaliation policies. Retaliation cases across all employment sectors are on the rise. In 2011, for example, the U.S. Equal Employment Opportunity Commission reported that more than one-third of discrimination charges it received also contained allegations of retaliation. To protect against these claims, employers should develop anti-retaliation policies and train managers and supervisors on their policy to comply with those laws. 


1 2012 U.S. App. LEXIS 24461 (4th Cir. Nov. 27, 2012).

2 Scott v. Merck & Co., Inc., 2010 U.S. Dist. LEXIS 126279 (D. Md. Nov. 30, 2010).

3 2012 U.S. Dist. LEXIS 92150 (D. Md. July 3, 2012).

4 569 A.2d 1299, 1301-05 (Md. Ct. Spec. App. 1990).

Nancy Delogu is a Shareholder in Littler Mendelson's Washington, D.C., and Northern Virginia offices, and Steven Kaplan is an Associate in the Washington, D.C. office. If you would like further information, please contact your Littler attorney at 1.888.Littler or info@littler.com, Ms. Delogu at nndelogu@littler.com, or Mr. Kaplan at skaplan@littler.com.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Littler | Attorney Advertising

Written by:

Littler
Contact
more
less

Littler on:

Readers' Choice 2017
Reporters on Deadline

Related Case Law

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.