The “employment at-will” doctrine is alive and well in Pennsylvania, at least with respect to public employers, the Commonwealth Court of Pennsylvania recently ruled. In McNichols v. Commw. of Pennsylvania, Department of Transportation, the Commonwealth Court of Pennsylvania held that an at-will employee of a public employer cannot advance a claim for wrongful discharge arising from an alleged termination in retaliation for filing a workers compensation claim.

The decision in McNichols represents a slight change of course for Pennsylvania Courts. Recently, the Pennsylvania Courts have begun to erode the at-will employment doctrine, carving out exceptions to the doctrine based upon “public policy.” Such public policy exceptions include, for example, where an employer requires an employee to commit a crime, filing for unemployment compensation, and where the employee complies with a duty imposed by statute or law. Most recently, in Shick v. Shirey, the Pennsylvania Supreme Court held that, as a matter of public policy, a private employer could not discharge an at-will employee in retaliation for filing a workers compensation claim.

However, McNichols is the first case to hold that such public policy considerations do not apply as it relates to public employers. Instead, the Court determined, the doctrine of sovereign immunity forbids wrongful discharge claims unless one of the exceptions set forth at 42 Pa. C.S. §8522 is applicable. Such exceptions will not apply to employment based decisions.

This decision is sure to incite much discussion and, likely, more litigation. Public employers should be particularly cautious in relying on the McNichols decision in making employment decisions. The decision seems inconsistent with some prior decisions, though the Commonwealth Court has not addressed this issue previously. We believe that if the Supreme Court of Pennsylvania considers this issue, there is a reasonable chance that the decision will be reversed and the Court will conclude that the public policy exceptions apply equally to public employers. We will continue to monitor the progress of this case and the cases that arise thereafter.