Massa, J.
Forrest Perkins, who had been an at-will employee working as a police officer, sued Memorial Hospital of South Bend for wrongful termination after it purportedly fired him for stealing food from the cafeteria. Perkins alleges that the true reason for his termination was the adverse testimony he gave at an unemployment compensation appeal hearing on behalf of a former coworker. The trial court, however, granted summary judgment for Memorial, asserting that because Perkins was never actually subpoenaed to testify, the public policy exception to the at-will employment doctrine—which would have barred his firing—did not apply.
Today, we reverse summary judgment and remand. While we hold that testimony compelled by a subpoena or other statutory duty is protected under the public policy exception to at-will employment, we again decline to carve out a new broad exception to the at-will employment doctrine. Perkins was obliged to cooperate with service of process and provide complete and honest testimony on the stand. Consequently, the only remaining question is whether Perkins was—without a paper subpoena— constructively compelled to testify once he was at the hearing. Because honest testimony by witnesses is important to the well-functioning of the state’s various adjudicative bodies, a witness generally should not be fired for complying with a hearing officer’s instructions. We hold that the record, as currently developed, does not support summary judgment when the hearing officer departs from the regulations by failing to provide a subpoena.
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Both parties agree that Perkins’s case should be analyzed under the public policy exception. “[W]e have recognized a public policy exception to the doctrine if a clear statutory expression of a right or a duty is contravened.” Baker, 917 N.E.2d at 654 (citing Wior, 669 N.E.2d at 177 n.5). A trio of cases decided by this Court explain how the exception works.
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Perkins offers two alternative theories to explain why his conduct should be protected as the exercise of a clear statutory right or duty. First, Perkins argues that we should expand the public policy exception to cover all testimony by witnesses in unemployment hearings. Second, Perkins contends that unlike the plaintiff in Baker—who had a mistaken belief that his employer’s conduct was illegal—Perkins’s mistaken belief that a subpoena would have required him to testify was not a mistaken interpretation of the law but of fact. Perkins asserts he was induced to testify when he was told that a subpoena would be waiting for him at the hearing. We decline to endorse these broad categorical distinctions.
Memorial responds that since the legislature has granted no express statutory right or duty to testify as a witness—outside of a subpoena— testimony does not fall within the limited public policy exception. To Memorial, Perkins’s acknowledgment that he never received a valid subpoena controls: his conduct is not protected by the public policy exception because he had no duty to testify. The unique factual nature of the case, however, does not support this analysis.
I. Legal duties of a witness in an unemployment compensation hearing
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Although we find no “clear statutory expression of a right or a duty,” Baker, 917 N.E.2d at 654, to appear voluntarily at unemployment hearings without a subpoena’s coercion, we agree with the dissenting opinion below: in our adjudicative system, accurate witness “testimony is essential to the process, to the parties and to correct decision-making,” Perkins v. Mem’l Hosp. of South Bend, 121 N.E.3d 1089, 1094 (Ind. Ct. App. 2019) (Kirsch, J., dissenting), vacated. Coworkers are often the only non-interested party able to provide or verify facts critical to the unemployment benefits adjudicative process. But it is the province of the legislature to expressly provide statutory protection for such voluntary testimony by at-will employees. See, e.g., Paul Stieler Enterprises, Inc. v. City of Evansville, 2 N.E.3d 1269, 1277 (Ind. 2014) (“The right to legislate is vested exclusively in the Legislature.”)
In sum, even absent an explicit statutory protection, in the context of an unemployment hearing, a witness first has a clear duty to cooperate with service of process from the moment he first believes he is being served with a subpoena. Second, once a witness has been subpoenaed by the hearing officer, he has a duty to appear and testify. And third, once a witness is testifying under oath, he has a duty to answer truthfully and generally cannot refuse to answer questions or leave the hearing to avoid questioning. Since he would be personally responsible for violating any of these duties, the person giving testimony at an unemployment hearing may be protected by the public policy exception to the at-will employment doctrine.
II. Perkins’s compliance with his legal duties
Perkins’s decision to testify at the unemployment hearing implicates all three of his legal duties at different points throughout the day of the hearing. Viewing the facts in Perkins’s favor, it is possible to conclude that he was complying with these distinct duties when he attended the hearing and provided testimony.
A. Perkins complied with his duty to “cooperate” with service by appearing at the unemployment office.
Perkins contends that he went to the unemployment hearing because he believed he would be given the subpoena at the hearing.2 Indeed, Perkins’s counsel—who also represented the coworker-claimant in the underlying unemployment hearing—elaborated that in these hearings, it was regular practice for an ALJ to “provide [the subpoena] on the day of [the] hearing.” Appellant’s App., p.282.
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B. Perkins could still have been compelled to testify without a physical subpoena.
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Based on the facts known, if Perkins tried to leave the hearing before being sworn, he may have immediately been handed a subpoena compelling him to testify. We will not automatically hold the ALJ’s failure to comply with the regulations against a witness attempting to comply with his statutory duties. These unsettled factual questions mean Memorial Hospital has not established that Perkins was free to leave before being sworn in as a witness.
C. After Perkins took the stand, he was under a duty to testify completely and honestly.
Once on the stand, Perkins could not have left the hearing or lied without facing legal consequences. Regardless of whether Perkins voluntarily took the witness stand, he was under a statutory duty to testify honestly and answer all questions once seated. See I.C. § 22-4-34-2; I.C. § 22-4-17-9. Since Perkins was under a duty once on the witness stand, Memorial could not have fired him for testifying truthfully. Consequently, further inquiry should focus narrowly on the time period between when Perkins was informed he was not under subpoena and when he physically took the witness stand.
Conclusion
We continue to strongly presume at-will employment. See Baker, 917 N.E.2d at 653. And we will not create a new exception for voluntary witness testimony at unemployment hearings. The ability to compel testimony of a third-party witness, however, is “a critically important public policy.” Frampton, 260 Ind. at 253, 297 N.E.2d at 428. So testimony compelled by a subpoena or other statutory duty is protected under the public policy exception to at-will employment. Since ensuring witnesses appear is vital to the adjudicative process, we will not ordinarily hold the witness liable for technical or procedural defects in the hearing officer’s order. Allowing employers to fire an employee merely because of a small technical mistake by the hearing officer would create the very “fear of retaliation” that the Frampton Court contemplated. Id. To be sure, however, this case shows why it is best practice for coworker-witnesses to confirm they have a subpoena in hand before testifying.
Viewing the evidence in the light most favorable to Perkins, we can view his decision to attend the unemployment hearing as a reasonable attempt at cooperation with service of process. But we cannot conclude, given the outstanding subpoena request, that Perkins did not face legal jeopardy if he refused to testify once at the hearing. To prevail on summary judgment, Memorial needed to show that Perkins voluntarily chose to testify and that he would not have been immediately compelled to testify if he had refused. We reverse and remand for further proceedings.
Rush, C.J., and David and Goff, JJ., concur.
Slaughter, J., dissents with separate opinion.
Slaughter, J., dissenting. I respectfully dissent.
The trial court was correct to enter judgment in favor of the defendant, Memorial Hospital of South Bend. And the court of appeals was correct in affirming that judgment under well-settled principles of Indiana’s employment-at-will doctrine. Thus, I would deny transfer and leave the appellate court’s well-crafted decision undisturbed. But because our Court has elected to weigh into the merits here, I write separately to explain why I believe our Court’s disposition is not only wrong but needlessly blurs what had been a clear, bright-line rule.