What is wrongful termination in violation of public policy?

This is the most often filed type of wrongful termination claim, and there are various versions.

Despite a contract being at will, the employer cannot violate a statute or public policy in doing so. Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 172 (1980). “[T]here can be no right to terminate for an unlawful reason or purpose that contravenes fundamental public policy.” Gantt v. Sentry Ins., 1 Cal.4th 1083, 1094 (1992).

“An employee has a common law right to sue for wrongful termination ‘when he or she is discharged for performing an act that public policy would encourage, or for refusing to do something that public policy would condemn.’” Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090 (overruled on other grounds).

What does the plaintiff have to show?

In order to prove a common law claim of wrongful termination in violation of public policy, the party must show:

1. an employer-employee relationship;
2. the employer terminated the plaintiff‘s employment (or took other adverse employment action);
3. the termination of the plaintiff’s employment was a violation of public policy;
4. the termination was a legal cause of the plaintiff’s damages; and
5. the nature and the extent of the plaintiff’s damage

Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 172 (1980).

Public policy violations

A four-part test determines whether a policy supports a wrongful discharge claim. The policy must be:

1. based on either a constitutional or statutory provision (or ethical rules of regulations enacted under statutory authority) (known as Tameny claims);
2. “public” in the sense that it “inures to the benefit of the public” rather than merely serving the interests of the individual;
3. well established at the time of the discharge; and
4. substantial and fundamental

Stevenson v. Superior Court, 16 Cal.4th 880, 894 (1997).

Violations of public policy are generally found when the employer retaliates against an employee for:

• refusing to violate a statute;
• performing a statutory obligation;
• exercising a statutory right or privilege; or
• reporting an alleged violation of a statute of public importance

Gantt v. Sentry Insurance, 1 Cal.4th 1083, 1090-91 (1992).

“Tethering public policy to specific constitutional or statutory provisions avoids judicial policy-making, and ensures that employers have adequate notice of the conduct that will subject them to tort liability for wrongful discharge.” Esberg v. Union Oil Co., 28 Cal.4th 262, 271 (2002). The plaintiff bears the burden of presenting “specific statutes and regulations on which the claim is based.” Green v. Ralee Engineering Co., 19 Cal.4th 66, 84 (1998). This allows the defendant and the court to determine what public policy applies.

Note that a wrongful termination in violation of public policy is limited by the statute the petitioner cites. Stevenson, 16 Cal.4th at 904.

Only the employer is liable

Sometimes a petitioner will sue the corporate agent. This will fail because only the employer is liable. Miklosy v. Regs. of Univ. of Cal., 44 Cal.4th 876, 901-902 (2008).

Statute of limitations

A former employee has two years from the date of termination to file a complaint for wrongful termination in violation of public policy. Code Civ. Proc., § 335.1

Types of wrongful termination in violation of public policy

The courts recognize a number of wrongful terminations in violation of public policy. Here are some of the most common:

Fair Employment and Housing Act (FEHA) – “A discharge in violation of the FEHA may also give rise to a common law claim for wrongful discharge.” City of Moorpark v. Sup’r Ct. (Dillon), 18 Cal.4th 1143 (1998).

Intolerable conditions – “A wrongful constructive termination in violation of public policy occurs when an employee resigns because an employer either intentionally creates, or knowingly permits to exist, working conditions that are so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238, 1250-51 (1994).

Medical advocacy – “A Tameny claim has been found to exist where a medical employee is terminated or otherwise penalized for ‘advocating for medically appropriate healthcare’ for his or her patient….” Khajavi v. Feather River Anesthesia Med. Group, 84 Cal.App.4th 32, 51 (2000).

Perjury – “Terminating an employee for refusing to commit perjury is a public policy that can support a claim for wrongful termination in violation of public policy.” Petermann v. Int’l Bro. of Teamsters, 174 Cal.App.2d 184, 19 (1959).

Unemployment benefits – The statutory scheme providing for unemployment compensation reflects a strong public policy in favor of providing benefits to persons who are unemployed through no fault of their own. Unemployment Insurance Code, § 100.

Wage payment – “Labor Code sections 201 and 203 implement a fundamental public policy regarding prompt wage payment.... Thus, under appropriate circumstances, termination in order to avoid payment of accrued compensation could support a claim for wrongful termination in violation of public policy.” Gould v. Md. Sound Ind’s, Inc., 31 Cal.App.4th 1137, 1148 & fn. 3.

Whistleblower – “The policy underlying a whistleblowing claim pursuant to Labor Code section 1102.5 provides a sufficient public policy to support [a wrongful termination] claim.” Diego v. Pilgrim United Church of Christ, 231 Cal.App.4th 913, 920-924 (2014).