WA State Torts: Wrongful Termination in Violation of Public Policy

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Under Washington State laws, what is the tort of Wrongful Termination in Violation of Public Policy? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).

WRONGFUL TERMINATION

Washington has been an “at-will” employment state since at least 1928. See Ford v. Trendwest Resorts, Inc., 146 Wn.2d 146, 152, 43 P.3d 1223 (Wash. 2002) (referencing Davidson v. Mackall-Paine Veneer Co., 149 Wash. 685, 688, 271 P. 878 (1928); see also Prescott v. Puget Sound Bridge & Dredging Co., 40 Wash. 354, 357, 82 P. 606 (1905) (Mount, C.J., dissenting) (“where [an employment] contract is general and for an indefinite time, it is terminable at will.”)). According to this doctrine, an employer can discharge an at-will employee for no cause, good cause or even cause morally wrong without fear of liability. See id., 43 P.3d 1223 (citing Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 226, 685 P.2d 1081 (1984)) (internal quotations omitted). Conversely, an employee has the absolute right to quit his or her employment at-will. See id., 43 P.3d 1223.

However, there are three recognized exceptions to that general at-will employment rule: (1) The Statutory Exception; (2) The Judicial Exception and; (3) The Contractual Exception. This article will address the Judicial Exception.

THE JUDICIAL EXCEPTION: WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY

Washington courts have recognized a narrow public policy exception to an employer’s right to discharge an employee; this exception is commonly known as “wrongful termination in violation of public policy.” Id., 43 P.3d 1223 (referencing Smith v. Bates Technical Coll., 139 Wash.2d 793, 991 P.2d 1135 (2000) (public policy exception to “for-cause” employees); Gardner v. Loomis Armored, Inc., 128 Wash.2d 931, 913 P.2d 377 (1996) (discharge of armored truck driver who abandoned post to prevent murder violated public policy)). 

Under this exception, an employer does not have the right to discharge an employee when the termination would frustrate a clear manifestation of public policy. Id., 43 P.3d 1223. By recognizing this public policy exception, Washington State Supreme Court has expressed its unwillingness to shield an employer’s action which otherwise frustrates a clear manifestation of public policy. See id. at 154, 43 P.3d 1223.

This legal theory is known as a tort. A tort is a civil wrong, other than breach of contract, for which remedies may be obtained. In Washington State, there are typically two ways to prove the tort of wrongful termination in violation of public policy: (1) via the Four-Scenarios Framework; and (2) via the Perritt Framework.

THE FOUR-SCENARIOS FRAMEWORK

"In Thompson v. St. Regis Paper Co., ... [the Washington State Supreme Court] adopted the tort of wrongful discharge in violation of public policy as a narrow exception to the at-will doctrine." Martin v. Gonzaga University, 425 P.3d 837, 842-43, 191 Wn.2d 712 (Wash. 2018) (citing Thompson, 102 Wn.2d 219, 232-33, 685 P.2d 1081 (1984)). "[This tort] has generally been limited to four scenarios:

[1] where employees are fired for refusing to commit an illegal act;

[2] where employees are fired for performing a public duty or obligation, such as serving jury duty;

[3] where employees are fired for exercising a legal right or privilege, such as filing workers' compensation claims; and

[4] where employees are fired in retaliation for reporting employer misconduct, i.e., whistle-blowing."

Id., 191 Wn.2d 712 (citing Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 936, 913 P.2d 377 (1996)) (internal citations and quotations marks omitted). "The elements of wrongful termination in violation of public policy were set forth in Thompson and refined in Wilmot [v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46, 821 P.2d 18 (1991),]" as follows[:]

[1] First, ... [the plaintiff] has the burden to show that his discharge may have been motivated by reasons that contravene a clear mandate of public policy ... [;]

[2] Second[,] ... [t]he plaintiff [is required] to show that the public-policy-linked conduct was a significant factor in the decision to discharge the worker[:]

[a] [t]he plaintiff must first establish a prima facie case by producing evidence that the public-policy-linked conduct was a cause of the firing, and may do so by circumstantial evidence[;]

[b] [i]f the plaintiff succeeds in presenting a prima facie case, the burden then shifts to the employer to articulate a legitimate nonpretextual nonretaliatory reason for the discharge ... [;]

[c] [i]f the employer articulates such a reason, the burden shifts back to the plaintiff either to show that the reason is pretextual, or by showing that although the employer's stated reason is legitimate, the [public-policy-linked conduct] was nevertheless a substantial factor motivating the employer to discharge the worker."

Martin, 425 P.3d at 843, 191 Wn.2d 712 (internal citations and quotation marks omitted).

THE PERRITT FRAMEWORK

"In Gardner, ... [the Washington State Supreme Court] adopted a four-part framework based on a treatise written by Henry Perritt to resolve a wrongful discharge suit that did not fit neatly into one of those four recognized ... [scenarios]." Id., 191 Wn.2d 712 (citing Gardner, 128 Wn.2d at 941, 913 P.2d 377 (citing HENRY H. PERRITT JR., WORKPLACE TORTS: RIGHTS AND LIABILITIES (1991))) (emphasis added). "The Perritt test has four factors: 

(1) The plaintiffs must prove the existence of a clear public policy (the clarity element).

(2) The plaintiffs must prove that discouraging the conduct in which they engaged would jeopardize the public policy (the jeopardy element).

(3) The plaintiffs must prove that the public-policy-linked conduct caused the dismissal (the causation element).

(4) The defendant must not be able to offer an overriding justification for the dismissal (the absence of justification element)." 

Id. (internal citations and quotation marks omitted).

THE BECKER-ROSE RULE

"[I]n Becker and Rose, [the Washington State Supreme Court] ... clarified that the Perritt [F]ramework should not be applied to a claim that falls within ... [the Four-Scenarios Framework] of wrongful discharge in violation of a public policy." Id., 191 Wn.2d 712 (citing Becker v. Cmty. Health Sys., Inc., 184 Wn.2d 252, 258-59, 359 P.3d 746 (2015) ("When the plaintiffs case does not fit neatly within one of these scenarios, a more refined analysis may be necessary, and the four-factor Perritt analysis may provide helpful guidance. But such detailed analysis is unnecessary here." (footnote and citation omitted)); Rose v. Anderson Hay & Grain Co., 184 Wn.2d 268, 277-78, 287, 358 P.3d 1139 (2015) ("We note that in other instances, when the facts do not fit neatly into one of the four above-described categories, a more refined analysis may be necessary. In those circumstances, the courts should look to the four-part Perritt framework for guidance. But that guidance is unnecessary here.")).

Learn More

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

–gw