throughout the states of michigan ohio kentucky and tennessee will be watching for this court's decision and they will be conducting and and altering their behavior  based on the decision of this court out of this case to that the public policy question we're concerned with is the exception to the employment at will discharge of general rule in kentucky and we're talking about what's called the refusal exception that's where employees discharge of an at will employee is so contrary to public policy as to give rise to a wrongful termination claim validate the law yet yes i believe there was in this case and i think that and the the request specifically was the assignment of job duties to kofi alexander which is to inspect and sign it would d b paragraphs thirty and thirty three of the complaint and paragraph forty eight read in conjunction that deals with kofi alexander's specific job duties these pallets come to him problem here is we've this was dismissed on a rule twelve these explosions what you're the questions you all are asking a really questions that would be answered through discovery i mean we can't prove  requires we would have to look at whether there was a directive to him to violate the law or or to refuse to do something that let's let's follow an engine block through this process it comes from the production plant where they drilled the cylinder holes and the bolt holes and those have to be drilled to very very precise specifications m important function that needed to be performed and that the fact of things should have been taken off the line i don't think i don't think that there's a correlate that the engine block would come to kofi when he is hired and his job expectation his employer told him this is what you are to do you are to inspect these blocks and if they have the defective codes on them you remove them you're place them with a good block and something without being asked to do it well when they put in when they put a pallet notice you know brought in you refused as the were refuse contain the idea that you say you will not do something even though you haven't been and you could say i refused to go to texas tomorrow that's a refusal isn't it well i don't have to be asked specifically to go to texas i might know that they might ask me is that right but think you can't refuse for purposes of the public policy exception you can't refuse to do something if you never been asked to do it i think the important question is  what are the many forms that seems to me you can see to weigh your case when you say well i believe that he's been asked has been at least can't you refused to do something that you're expected to do even though you haven't been asked to do it well i think that if you're expected to do asked is the difference at sea then when you say it that way you say it in a way that makes it sort of strains against the semantic meaning of ask seems to me it be easier just to have a broader meaning of the word refuse to refuse includes things that you may not have been asked but to say that you've been asked when you haven't been asked to just wondering about the strategy of using for the words well it's really it's really the facts here is pallet of defective blocks that have been altered that have been placed on the line that's what i'm suggesting they've been placing down the line and you're expected to sign off on them you say i refused to sign off on them and they fire you looks like a refusal to me doesn't look like he's been asked to me well if he has been asked because that's his job expectation and if we ask you to sign off on all of the locks we're asked to include job expectations i think that if it's your job expectation to sign off on the engine blocks that they are good and a pocket a power of defective engine blocks are put in front of you for you to perform in your expected job duties by signing off on and you refuse you have that point went and reported that and said no you can't do it either those people weren't even supposed to be there they were from the other side of the street they were from the production facility from a different shift they had no business being over there they case the remedy or case deals with the two attorneys from the room in your law firm who discovered that the home office was fraudulent altering their attorney building codes to show that attorneys were altering their records to show that attorneys were doing the work instead of paralegals they objected to that they were never asked to do it themselves they objected to it they instructed their staff not to do it they were fired for their refusal to participate and go along with that scheme the kentucky court said that under those circumstances under a twelve b six situation that was sufficient to sta claim under kentucky law the whole case is also instructed the husband was never instructed to do anything the ins husband never refused to do anything it was the wife but both husband and wife were were fired so i thought i believe that the kentucky supreme court allowed it and the kentucky district court federal district court allowed the remedy or case the hill in the remedy or cases the question really has there been in effect of request if i'm an employer and i silently sit across the table and and hand a fraudulent document to a employee whose job is to sign that document and blair adam and the employee says i'm not going to sign that kentucky is the now would be the hill case which is the kentucky supreme court in which the husband and wife were both employed the wife was told to was asked to present fraudulent or false testimony the wife refused they fired and so we have a direct request day that would support the wife that the only thing that would support is is the husband's been bidding for his relationship with the while i know the husband was an employee also they fired the husband too high it's what i just said i didn't say anything different from that i thought you meant that just being black married to or that he benefited from her employment the husband in the hill case was never asked to do anything illegal the husband in the hill case never refused to do anything and really the husband in hill was fired the husband hill according the kentucky supreme court had a case now i think we're over i didn't see how that helps you very much it's the same it's the same situation where there's been enough there's been a affective request to go along there's been asked to do something wrong here and consequently therefore mr alexander benefits from his relationship with the person who's directly asked to do something rock that's not this case well i believe in this case where kofi alexander is presented a  of of engine blocks that have been altered to show that they're good blocks when they're defective and it's his job to sign off on it and he refuses he has been asked and he has been review been guilty of not paying any attention to or why the other question i have one quick question for clarity there's two prongs as i understand it of the kentucky public policy and one is the one you've been arguing the other i guess a sexercise in your statutory it please the court counsel good morning your honour's casey bond for apple legal manufacturing i think the court has hit the nail right on the head it would require an expansion of kentucky law to find that appellant allegations in his amended complaint are sufficient to make out a claim for wrongful discharge in violation of public policy the kentucky courts have intentionally construed this cause of action very narrowly the courts have stated that the tort must be clearly defined and suitably controlled that's both this coming from the supreme court of kentucky and the court of appeals it should not be expanded in this case because it would be inconsistent with prior kentucky case there's there's not any dispute here but illegal conduct on the part of fellow employees that's not a nice correct we must assume his allegations as true what critics critically missing from his allegations however is that there was no affirmative request for him to violate the law and there was no direct refusal for him to violate the law but the question i'm trying to get i take your point that kentucky courts don't want this exception to sort of expand into anybody who gets fired said well you fired me because i knew joe down the hall was doing something wrong and i was about to report it the kind of thing where if you allow that you're just creating a whole  gap in the in those in a employment at will doctrine on the other hand there might be some things that are very close to the heart of the exception that  might not fit within what you're describing is the contours of the exception for instance what if an employer says you may be asked tomorrow to to do x and x is an illegal act will you do it and he says i refuse to do that and then he's immediately fired you would say that's not covered i would say it has not been announced we'd have to look at the facts i think you have to look at the facts laid  he was asked to do that he was asked if he would do it if he were asked and you say that's enough i believe the kentucky courts would say even though they've never said it on those particular facts you know they haven't so and so so i guess you're conceding from my perspective that there might be factual situations where an expressed refusal to do something that you're likely to be asked that's coming down the pike as it were might be enough to state a claim and we might have to get some discovery to see just what the circumstances were you know your honor the actual circumstances that you presented there was an indication from the employer that they were affirmatively going to ask ause it's possible that you'll be asked was my my question i suspect that the kentucky court system was fired after indicating they would refuse an affirmative request that that was going to be coming they would say that probably i don't see how that's kind of similar to what's going what's alleged at least in the complaint that says ordinarily he would inspect these things they're coming down to him i do not he is just fired like the facts in this case indicate that it's soon as he started the discussion about these engine blocks in question a supervisor says i'll sign these forms he was never asked to sign these form that's one reading of that colloquy but i mean a jury might read th i certainly read it differently if i had been a juror i would have been suspicious but maybe i'm not a typical juror think the difference it's to me between this area that we have here and the one that druggers out is that the employers in your it participation in the illegal conduct was directly at issue indirectly this explicitly discuss and that's not this case now conduct of mr alexander's was ever under discussion with the employer would have made i'm i'm sort of backing an argument for you so i think that is what i was attempting to say the difference in in my view after reading the kentucky cases is there was an indication under judge roger set of facts that there was going to be an affirmative request the employer said hey i'm going to ask you tomorrow to do this employee says no here there was never any indication to mr alexander that he was being requested to and engage in any type of illegal behavior with these engine blocks he walked in he sees  scenario that of course he's deemed to be some illegal conduct we have to accept that is true for purposes of the twelve b six as soon as he raises the discussion and asks who's going to sign these the supervisor says i'll sign them he is then sent home because as he says in his complaint the allegation was he was cursing at the supervisor as a result of this incident he never even had the opportunity frankly to actually refuse to perform any function with regard to these engine blocks because he had been sent home the cases even the appellant in his briefing calls it an implicit request and says that he would side with is there any indication that that was that trail xander supervisor was i don't believe it's clear in the amended complaint who exactly was just a supervisor but opponent says the eagle intended to have him unwittingly sign fraudulent paperwork as part of this implicit request making an implicit request or having someone do something unwittingly is not an affirmative request under any stretch of a definition of what an affirmative request is  opinion if there is some other case where kentucky has written and specifically endorsed this affirmative request requirement yes your honor in fact just the year after the welsh decision was decided which was a kentucky court of appeals cases when the hill versus kentucky lottery court case was decided by the kentucky supreme court and in that case the supreme court said there was an issue about whether the plaintiffs could make out both a claim under the anti discrimination statute in kentucky and a wrongful discharge claim that kentucky supreme court said had the defendant never approached the plaintiff about her testimony in her coworkers matter and the only conduct at issue was her eventual testimony on her his behalf a civil rights claim could be stated upon terminations but there would be no basis for a common law or wrongful discharge claim i there was no request for perjured testimony so the supreme court clearly stated in that case there had to be the request to go and you think that case that he'll would rule out this motion and implied a request along the lines of there being an expectation based on your job duty and a refusal to perform that function of the job you think that would not amount to a could not amount put him at request of the reading appeal i think that correct generally look at the other cases in kentucky where this cause of action has been decided all of them involved very clearly affirmative requests the language used by the courts are very clear that they narrowly tailored this claim and that there must be an affirmative request for instance in the burton visa worker an associate's case and employee was pressured by the supervisor to change statements he had made to outside counsel in the course of a sexual harassment investigation and ultimately changed his testimony if there were he was going to have to appear in court about that in the sparks versus henson case and the employee was instructed to falsely describe her role in a scheme regarding the distribution of customer satisfaction surveys in the northeast health health management case employees were asked to lie in the course cases which have some force where there was such a clear and explicit request but that's that's not the same as a holding that less than that was not enough i think  it's telling that there has never been a case decided by the kentucky courts that has expanded the wrongful discharge public policy claim to a set of facts that involves what would amount to an implicit request it and i want to make one mention in you you can argue about whether this was sufficiently affirmative refusal right but assuming that this is the equivalent of i'm not going to do that right which in common parlance who's going to do that when you're talking about the person who's going to come in the next day my which may be suggest something i'm not sure what judge rogers raises an interesting point about cases that you know not having cases that really the i mean you know it's easy to say that a refusal it must be sure but it's not or an explicit request must be shown but it's not but it's not helpful when you don't have something that is a list they had case to go to outline the contours of this  there really isn't because kentucky has somewhat unique law with regard to this wrongful discharge claim it is more narrow than the the brumfield discharge claim is in most many other states it is that based on the  would that we were to talk about i think if you look as you look at the entire body of cases because granted there is not a case that affirmatively says and implicit requests is not sufficient but  the next thing we best thing we can do is to look at the entire body of case law where every time a kid a court has accepted this claim they have used very strong language indicating that there must be an affirmative request followed by refusal and all of the facts indicate very clearly what would be deemed affirmative requests to violate the law this you could draw if you were trying to figure out what the our underlying policy of the of the court and coming up with this doctrine it would seem rather than getting into formalisms it would it would be pretty clear that they don't want people to be able to resist being fired by saying i'm not reporting somebody else's or violation of the law and i'm not i'm not going or i'm going to report that you did something bad that that shouldn't be enough on the other hand when the person is is required to do something and refuses to do it by bad i mean it legal or whatever but that's kind of at the heart of what the public policy exception is direct i mean if we're just looking at what presumably was driving the exception and what presumably was driving the limits this case has a feel of being over in the case of what the what the per what the purpose of the exception was all about or not  asking i do and with all respect your honor i think it we could just as easily look at all these cases and determine that the underlying policy for the reason for this claim is because the court doesn't want cases to proceed where someone is just assuming i'm going i'm being asked to do something illegal they want it to be a clear cut set of circumstances where an employer has asked them to violate the law here it takes so much sumption on the part of mr alexander that hey i see what's going on here i assume that they are going to ask me is i do in the normal course to sign this paperwork but what was that it was coming in the next day on ordinary basis ordinarily but again as soon as there was a discussion ensued about these engine blocks the supervisor says i'm going to sign them he did indicating it it was out of the ordinary about a supervisor you do it was out of the ordinary for these people to be in this area dealing with the engine blocks as stated in the amended complaint so i don't think it's a stretch to say this was going to be a different set of circumstances than the normal course where an engine block would come to him nobody what would be the justification not a public policy basis for differentiating between the employee who is asked to do something illegal and the employee who instead reports that illegal activity of others is going on in the workplace your honor i'm not sure what the basis is for that distinction but the kentucky courts have clearly determined they are going to make that distinction in allowing the wrongful the real issue in this case is what what is the public policy exception in kentucky and we believe the whole body of kentucky case law to the supreme court through the firestone is that if there's been an affective request for the employee to violate the law if the employee makes an effective refusal to violate the law and the employee is fired as a result then that violates public policy if we start parsing out different language and magic words and you know the difference with an employee says sign this will you sign this or i'd really like if you sign this or just shrugs of piece of paper in front of them glares at them and then hands him a pen if we're making the distinction in the law on those facts that makes the law ridiculous completely undermines the public policy if there's been a defective request by putting this power of blocks in front of kofi alexander and expecting him to sign off on it remember these people sneaked in while he and his employees were on break he wasn't even supposed to find out that they had altered these things he came using nail polish to remove the defective code from that had been painted on to the block by the people over in the plant where they were supposed to be on the previous shift this was a completely fraudulent scheme that kofi walked in on and you know again are we going to parse out an employee he says i refused to sign off on that i'm not going to sign off on that who's going to sign off on that or the employer who simply says and walks away all four of those employees  addresses that implicit or the kind of circumstance that you just address where there thought of an indirect request or a request to conduct but i think the unfortunately the two most on point decisions are to federal court decisions which is the order burn decision where it was someone else's job that some of the employee just said hey someone over there is doing something illegal and the