Washington’s Public Policy Exception to Employment at Will

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Washington’s Public Policy Exception to Employment at Will

Washington is an employment at will state, meaning employment can be terminated for any reason as long as it does not fall within a few narrow exceptions.  One of those exceptions to the employment at will doctrine is the tort of wrongful discharge in violation of public policy.

In order to prevail on a claim of wrongful discharge under this exception, an employee must be able to show three things: (1) Washington has a clear public policy (the clarity element), (2) discouraging the employee’s conduct by allowing the employer to fire him or her would jeopardize the public policy (the jeopardy element), and (3) the cause of the employee’s termination from employment was engaging in conduct protected by a public policy (the causation element). Gardner v. Loomis Armored, Inc., 128 Wn.2d 0931, 941 (1996). If these three elements are met, an employer will still prevail if it is able to offer an overriding justification for the termination decision (the absence of justification element). Briggs v. Nova Services., 166 Wn.2d 794, 802 (2009).  Also, a claim for wrongful discharge in violation of public policy may not be available if there is an adequate remedy otherwise.

How do you know what constitutes Washington public policy? As examples, Washington courts have generally allowed employees to bring an action for violation of public policy when an employer terminates an employee because he or she (1) refuses to commit an illegal act, (2) performs a public duty or obligation, or (3) exercises a legal right or privilege; or the employee is terminated in retaliation for reporting employer misconduct. Gardner, 128 Wn.2d at 936.

Public policies are found in the letter and purpose of constitutional provisions, executive orders, statutes and regulations, local zoning, building or fire codes; and also in court decisions. A public policy is found in “some prior legislative or judicial expression on the subject”. Thompson v. St. Regis Paper Co., 102 Wn. 2d at 232. Your lawyer can help you determine if what happened to you constitutes termination in violation of public policy.

In Danny v. Laidlaw Transit Services., Inc., 165 Wn.2d 200 (2008), for example, an employer first demoted and then terminated the employment of an employee because she took time off to move her children out of a domestic abuse situation. The Supreme Court tracked a long history of legislation aimed at preventing domestic violence and encouraging and assisting victims to seek help, leave and prosecute the abusers.  “Washington State has unequivocally established, through legislative, judicial, constitutional, and executive expressions, a clear mandate of public policy of protecting domestic violence survivors and their families and holding abusers accountable.” Id. at 227. The Court agreed the “state’s clear and forceful public policy against domestic violence supports liability for employers who thwart their employees’ efforts to protect themselves from domestic violence.” Id. at 220. The Court agreed that unless employers can be held liable in such situations, the clear public policy against domestic violence would surely be jeopardized.

Compare, also, Gardner v. Loomis Armored Inc., supra, 128 Wn. 2d at 941-945; in which an armored car driver was fired for leaving the vehicle in violation of what the court found to be a valid company policy. The driver left the vehicle to aid a person in a hostage situation. The Court found the case implicated a public policy of encouraging citizens to save human lives. The policy was not specifically stated in a particular legislative or judicial pronouncement but could be gleaned, for example, from an array of statutes including those providing a release of liability to good Samaritans, immunizing citizens from liability when they aid police officers, prohibiting obstruction of justice, criminalizing an unreasonable refusal to summon aid when requested to do so by a police officer, and pronouncing to the effect people “have a civic and moral duty” to aid law enforcement, etc. The public policy could also be found in a Washington case that upheld a sentence that was in excess of the guidelines; the victim had stopped to help the defendant when his car broke down. The Court also pointed to criminal defenses claiming a crime was committed under duress to avoid injury to another. All of these expressions, said the Court, revealed a clearly mandated public policy of encouraging citizens to help others in distress.

The Court found a threat of dismissal would surely jeopardize Washington’s clearly stated policy of protecting lives. I would “discourage others from engaging in the desirable conduct.” Id.

The lawyers at Allen & Mead can help you determine whether your employment termination was a violation of Washington public policy. Allen & Mead attorneys have substantial experience in handling these kinds of cases and are here to help you.

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