Spokane Journal of Business

Public policy can complicate firing at-will workers

Employers should learn what can be construed as wrongful termination

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The general rule in Washington is that an employee who isn't subject to an express contract of employment can be terminated at any time, without cause. There are, however, several exceptions to that rule.

The terms of an employee handbook or specific treatment guaranteed by an employer may create legally enforceable obligations. In addition, antidiscrimination laws can subject larger employers to liability for adverse employment actions.

The judicially created doctrine of "wrongful termination in violation of public policy" originally functioned as a narrow exception to the rule of at-will employment. It's intended to apply where important public policies are implicated by an employee’s termination.

For example, in one classic case, a guard couldn't be fired for violating company rules by leaving an armored vehicle to save the life of a nearby hostage. Allowing the guard’s termination under those circumstances would contravene public policy in encouraging good Samaritan acts and preserving human life.

The doctrine has been extended to many other policies and circumstances over the years. For example, public policy has been implicated where employees allegedly were fired for complying with accounting laws; attempting to make an employer comply with consumer credit and protection laws; refusing to falsify commercial driving logs; and assisting a criminal investigation into workplace theft. 

Public policy is also implicated in cases of nonunion employees going on strike for better working conditions; filing a workers’ compensation claim; and complaining about an employer’s failure to pay overtime. Other actions protected under public doctrine include workers taking time off to remove themselves and their families from domestic violence situations; pursuing a workplace grievance against a public employer; and making complaints about workplace safety.

That cause of action also generally allows for application of antidiscrimination laws to employers not large enough to be explicitly covered by statute. Thus, such claims have been brought against smaller employers for age and gender discrimination, including sexual harassment.

Employees may claim they were constructively discharged or terminated in retaliation for engaging in a protected activity. Constructive discharge means the employee wasn't actually fired, but the employer deliberately made working conditions so intolerable that the employee essentially was forced to quit. If employees are engaged in any type of protected activity and then fired, they may be able to argue that they were discharged in retaliation for engaging in that activity versus some other reason the employer had for terminating them.

There used to be significant hurdles to bringing this type of claim. Initially, courts were reluctant to expand the list of recognized public policies to avoid potentially endless employer liability. As another example, employees once had to prove that there were no other adequate avenues for vindicating the public policy at issue and that their lawsuit presented the only available adequate means of promoting the public policy.

Courts recently have relaxed the rules, and employees now only need to show that their conduct was related directly to the public policy at issue and not necessarily the only means of enforcing such policy. Thus, employees are able to establish a claim where they can show that a public policy exists and that their discharge contravenes or jeopardizes that policy. The burden then shifts to the employer to prove that the employee was terminated for other reasons which would not implicate public policy.

Ultimately, employees need only prove that the issue implicating public policy was one reason for their termination and not necessarily the only reason.

The end result is that employees may bring suit for their termination when any type of public policy is conceivably implicated. Applicable public policies have been found in state and federal statutes and regulations, in executive orders, in judge-made case law, in municipal codes, and even in building and fire codes.

That creates a difficult position for employers, who essentially must factor in the entire body of law in determining whether terminating an employee could implicate public policy under the circumstances.

Another important consideration is that any employee may bring this cause of action, even an employee who is terminable only for cause. Those employees may bring such a claim in addition to other remedies available to them under union grievance processes, public employee rules, or in breach of contract. Affected employees can recover damages for such categories as emotional distress, which may not ordinarily be recoverable under the law. Emotional distress damages can be significant when a person’s livelihood, sense of self-worth and basic ability to provide for their family is at stake.

The terms of an employment contract are irrelevant to an employee’s ability to bring suit for wrongful termination in violation of public policy. The right to be free from such termination can't be waived by agreement. Employment contracts that provide for exclusive remedies still will allow an employee to sue for the full range of tort damages where public policy arguably has been violated.

As in any employment matter, an employee who prevails in a lawsuit may recover attorneys’ fees from their employer. This provides incentive for bringing such claims and exposes employers to further liability for costly legal fees.

Thus, Washington employers may be subject to extensive liability for firing or constructively discharging at-will employees under a broad range for circumstances. For that reason, it's important for any business to consult with an employment attorney on general policies and practices and before taking action against a specific employee. Documenting employee issues is critical to showing that an employee’s termination was related to legitimate issues, such as poor performance—not other alleged reasons that might violate public policy.

When such claims are filed, it's important to retain the services of a skilled litigator who can guide the case toward a favorable resolution under the circumstances.

  • Timothy J. Nault

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