Two recent federal appellate decisions suggest that even the hallowed employment at-will doctrine is not without its limitations.

The first is Swindol v. Aurora Flight Sciences Corp., a case decided by the Fifth Circuit Court of Appeals on August 8, 2016. The employee in that case was fired for parking his truck in the company parking lot with a firearm locked inside in violation of a company policy prohibiting firearms on the premises. However, Mississippi has enacted a state law prohibiting most employers from enacting or enforcing a policy barring employees from transporting or storing a firearm in a locked vehicle in any parking lot or garage; therefore, the employee alleged the statute codified a public policy protecting his right to carry a firearm on company grounds, and his termination was in violation of that public policy. The Fifth Circuit asked the Mississippi Supreme Court to determine whether the statute represents a public policy exception to the general employment-at-will doctrine, and the Mississippi court responded it did.  The Fifth Circuit therefore concluded the employee had stated a claim for wrongful discharge under Mississippi law. The Swindol case is a reminder to employers, particularly those with facilities in multiple jurisdictions, to ensure their general employment policies are reviewed by local counsel in the locations where they do business to comply with local law. In the Swindol case, for instance, although the company’s no-guns-at-work policy may have been lawful in some of its locations, its human resources professionals should have been advised, and their policies amended to reflect, that employees in Mississippi could not be terminated solely for storing a firearm in their locked vehicles in the company parking lot.

The second decision is Godwin v. Rogue Valley Youth Correctional Facility, a case decided by the Ninth Circuit Court of Appeals on August 10, 2016. The employee in that case was affiliated with a motorcycle club suspected of engaging in criminal activity and he wore club insignia regularly, including at work functions. As the juvenile correctional facility he worked at admitted it terminated him for his expression of motorcycle club affiliation, the employee alleged he was terminated in retaliation for his engaging in speech and expressive activities protected by the First Amendment. The public correctional facility argued, however, that the government’s legitimate interest in promoting the efficiency of the public services it performs, and avoiding the potential of workplace disruption that could be caused by an employee wearing paraphernalia associated with a suspected criminal enterprise, outweighed the employee’s First Amendment rights. The Court disagreed, finding there was no evidence the employee’s club affiliation expression caused actual disruption in the workplace, impeded his job performance, impaired personnel relationships, or otherwise interfered with the operation of the facility. While the opinion is limited in application as only employees of public employers enjoy such broad First Amendment protection, it is a reminder that courts will often be skeptical of entirely speculative justifications for terminations even of at-will employees in the absence of concrete wrongdoing by the employee.

While the employment-at-will doctrine remains alive and well and should be protected to the greatest extent possible, it is not limitless. Employers are advised to review policies and termination decisions with counsel to ensure that unique protections – such as public policy exceptions provided by state law or constitutional rights applicable to public employees – are not implicated.