1. Running head: PRIVACY/EMPLOYMENT AT WILL: FIRED FOR WHISTLING? 1
Amanda Smith
HRDV 3307- Employment Law
“You Be the Judge” Part I: Argument Paper
Privacy/Employment at will: Fired for Whistling?

2. PRIVACY/EMPLOYMENT AT WILL: FIRED FOR WHISTLING? 2
Privacy/Employment at Will: Fired for Whistling?
Arguing for the Plaintiff
Zilian Han is a tenured employee with a good employment record for New Millennium
Toys. She is Marketing Director and is in charge of the marketing aspect of the toys that are
produced by the company. Han is suing the defendant for wrongful termination and a breach of
privacy. The case in question began when the plaintiff, Zilian Han, was fired by the defendant,
Suzanna Robertson, on the grounds that Han leaked private company owned information. The
information which was leaked dealt with potentially hazardous chemicals used in the paint on a
jungle gym marketed for use by children.
Han was concerned because she stated that the product had not passed several tests
conducted by the FDA. Therefore she had a legitimate public policy concern. She even spoke
with another employee in the manufacturing department who was usually completely on board
when it came time to market products but this time she said that he was hesitant and suspicious
because of the hazardous material used on the product. Han checked with her direct supervisor
and voiced her concerns on the matter. The defendant stated that she was in the middle of a lot of
work when Han approached her with the issue and only asked if the director of manufacturing
had given the go ahead to market the product, at which point Han replied, yes. She ignored Han’s
legitimate concerns for the health and safety of those who may come in direct contact with the
hazardous chemical and reasoned that if there were a real cause for concern then someone from
manufacturing would have spoken up as well.
To help protect herself after the product was distributed and to avoid any kind of
backlash over the hazardous chemical used, Han consulted with her attorney on the matter. This
is where the issue of leaked company information comes in to play. Han disclosed this

3. PRIVACY/EMPLOYMENT AT WILL: FIRED FOR WHISTLING? 3
information to only her attorney as she was seeking legal counsel on how best to avoid any
liability if a situation came up regarding the hazardous material. Han’s defense here is that she
had a reasonable expectation of privacy regarding her workplace email and that this right to
privacy was violated by the defendant. Bennett-Alexander (2009) indicates that “anything that
the employer provides to employees—a telephone, computer, desk, chair, or other business-
related instrument—contains no expectation of privacy because it belongs to the employer, not to
the employee. Thus, the content of emails, telephone calls, and computer activity conducted on
employer provided equipment is not private” (p. 635). Using this information we can see that
Ms. Han was somewhat misguided in thinking that her workplace email was protected and
private even if it dealt with her own personal legal matters.
Next, the defendant repeatedly stated that Han was not fulfilling the objectives laid out in
her job description, therefore leading to her termination. The defendant discussed her issue with
Han as being solely concerned by the fact that she had completely halted the marketing and
distribution of the product and was being insubordinate by doing so. However, since the plaintiff
had a legitimate public policy concern, this is why she stalled the efforts to market the product.
Han also argues that she did not believe that the defendant knew enough about the paint being
used on the jungle gym to make a well informed decision to market it. She did not want to be
responsible for marketing a product she knew to be unsafe by FDA standards.
The court case, Phipps v. Clark Oil & Refining Corp., 408 N.W.2d 569 (Minn. 1987),
outlines a rule concerning public policy and employment that we can readily apply in the Case of
Han v. Robertson. Phipps was a cashier at a service station who was asked by a customer to give
him leaded gas to be put in a vehicle that requires unleaded gas. Phipps went to his manager and
the manager told him to dispense the gas just as the customer had requested. Phipps refused

4. PRIVACY/EMPLOYMENT AT WILL: FIRED FOR WHISTLING? 4
because he knew that this would break a federal law. He was subsequently fired shortly
thereafter. Since Phipps’ actions were done in good faith, the courts found in his favor because
he had a legitimate concern based on a public policy regarding The Clean Air Act. The
significance that this case produces is that an employee is not required to abide by an employer’s
orders if that would mean breaking the law.
We can use this logic regarding Han’s actions because she had a concern for the health
and safety of individuals and children who would come into direct contact with the paint used on
the jungle gym. She acted in an “insubordinate” manner because she was doing what she
believed to be right and did not want to be responsible for knowingly marketing a product that
could adversely impact the health and well-being of the public. Additionally we can argue that
Han was wrongfully terminated on the grounds that she was a whistleblower.
Since the plaintiff worked for a private company she would be considered an at-will
employee working in the private sector. At-will employment essentially means that an employer
can “fire an employee for incompetence, insubordination, or any of the other reasons we might
consider valid…” and the “point is that employees serve at the whim of the employer” (Bennett-
Alexander, 2009, p. 644). Robertson may try to argue that Han was being insubordinate by
stalling marketing of the product but Han has some protections even as an at-will employee.
Certain federal and state laws protect from certain employment actions that occur in bad faith,
and that are “malicious or retaliatory termination in violation of public policy” (Bennett-
Alexander, 2009, p. 645). For these reasons we can also argue that the plaintiff should never
have been terminated.

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I would also like to discuss the evidence provided regarding Han’s employment
performance record. Her overall rating ranged from above average to outstanding/exceptional.
She had been with the company for eight years and in that time had never participated in any
kind of behavior that would be deemed insubordinate by her supervisor. In another case, Sabine
Pilot Service, Inc. v. Hauck 687 S.W.2d 733 (Texas 1985), the court’s finding was that if there
are other reasons for terminating an employee in addition to a public policy issue, then the at-will
doctrine will be effective and there will not be a case for retaliatory discharge. Robertson could
not give any other reasons for termination not associated with Han’s public policy concern.
So, what was the true reason for her termination? Based on the various points I have
made on behalf of the plaintiff I would like to point out and argue that Han was fired for the sole
reason that she did not market the product when she was asked to. I believe this angered the
supervisor to the point that she participated in retaliatory behavior and fired Zilian Han.
Robertson tried to make it look as though Han was being insubordinate and that she breached a
non-disclosure agreement, but since Han’s concern was based primarily on the distribution of a
product that could potentially endanger the public’s health, her actions can be appropriately
justified by the public policy of ensuring that someone’s health and safety are not in jeopardy.
This also justifies her whistleblowing and disclosing private information to her lawyer.

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References
Bennett-Alexander, D. D., & Hartman, L. P. (2009). Employment Law for Business (7th ed.).
New York, NY: McGraw-Hill
Phipps v. Clark Oil & Refining Corp., 408 N.W.2d 569 (Minn. 1987)
Sabine Pilot Service, Inc. v. Hauck 687 S.W.2d 733 (Texas 1985)