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Wholey v. Sears Roebuck6/19/2002
Section 762, originally enacted as Section 768, see Md. Code (1957, 1992 Repl. Vol., 1993 Cum. Supp.), Art. 27, §768, did not take effect until October of 1993. Id. Prior to the Acts of 1993, the Legislature had only prohibited intimidating, influencing or corrupting jurors or witnesses in the "discharge of his duty," i.e. as a juror deciding the outcome of a case or a witness giving testimony, see Md. Code (1957, 1992 Repl. Vol.), Art. 27, §27, therefore, no public policy mandate regarding the reporting of criminal activity was discernible.
Again, while no legal duty to report criminal activity exists in Maryland, at least with respect to the factual circumstances before us, the Legislature has determined that one who reports criminal activity to appropriate authorities should be statutorily protected from retaliation for such conduct. Therefore, we conclude that a public policy mandate exists for employees who report criminal activity to the appropriate authorities and are subsequently discharged from employment on this basis. We decline the petitioner's invitation to adopt a broader public policy mandate for conduct encompassing the investigation of suspected criminal activity of an employee, being of the opinion that such a significant change in our law is best left to the Legislature. See Sabetay v. Sterling Drug, Inc., 506 N.E.2d 919, 922, 923 (N.Y. 1987)(refusing to recognize a tort cause of action for wrongful discharge in violation of public policy for a whistleblower who reported illegal tax avoidance schemes to his supervisor, stating that "significant alteration of employment relationships . . . is best left to the Legislature . . . because stability and predictability in contractual affairs is a highly desirable jurisprudential value" and further noting that its Legislature had appropriately responded by enacting a myriad of statutes to protect at-will employees from terminations which run contrary to public policy)(citing Murphy v American Home Prods. Corp., 58 N.Y.2d 293 (1983)). Furthermore, as the Supreme Court of California declared in Gantt v. Sentry Ins., 824 P.2d 680 (Cal. 1992):
A public policy exception carefully tethered to fundamental policies that are delineated in constitutional or statutory provisions strikes the proper balance among the interests of employers, employees and the public. The employer is bound, at a minimum, to know the fundamental public policies of the state and nation as expressed in their constitutions and statutes; so limited, the public policy exception presents no impediment to employers that operate within the bounds of law. Employees are protected against employer actions that contravene fundamental state policy. And society's interests are served through a more stable job market, in which its most important policies are safeguarded. Id. at 687-88 (emphasis added).
We believe that the proper balance is achieved by proceeding cautiously when called upon to declare public policy absent some legislative or judicial expression on the subject and in so doing, we limit the adoption of a tort cause of action for wrongful discharge to circumstances where an employee reports criminal activity to the proper authorities and is discharged as a result of this reporting. See Ewing, 312 Md. at 49, 537 A.2d at 1175 (explaining that the recognized tort action was not intended to reach every wrongful discharge, but rather only those where a clear mandate of public policy is violated).
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED WITH COSTS.
Concurring opinion by Raker, J., in which Wilner, J., joins
I join in the judgment of the plurality opinion affirming the judgment of the Court of Special Appeals. U
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