Wrongful Discharge in Violation of Public Policy

Wrongful discharge in violation of public policy is a significant aspect of employment law, particularly in the state of California. This legal principle is designed to protect employees from being terminated for reasons that violate fundamental public policy. Here is a comprehensive overview of this concept:

Definition and Legal Basis

Wrongful Discharge in Violation of Public Policy: This occurs when an employer terminates an employee for reasons that contravene established public policy. This principle is grounded in the doctrine that no individual should be compelled to choose between violating the law and keeping their job.
Legal Foundation in California: In California, the doctrine is rooted in common law and has been affirmed in several court cases, including Tameny v. Atlantic Richfield Co. (1980).

Essential Factual Allegations

To establish a case for wrongful discharge in violation of public policy, the plaintiff must typically prove:

Employment Termination: The employee was terminated from their job.
Violation of Public Policy: The termination was for a reason that violates a public policy.
Policy Clarity: The public policy must be well-established and fundamental.
Causal Connection: A direct link between the violation of public policy and the termination.

Examples of Violations

Refusal to Violate a Law: For example, an employee is fired for refusing to participate in illegal activities as instructed by the employer.
Exercising a Legal Right: Such as termination for taking family or medical leave under the Family and Medical Leave Act (FMLA).
Reporting Violations (Whistleblowing): An employee is terminated for reporting the employer’s illegal activities or safety violations.

Legal Consequences

Civil Lawsuits: Employees can sue for damages, including lost wages and benefits, emotional distress, and sometimes punitive damages.
Reinstatement: Courts may order reinstatement of the employee.
Legal Remedies: These might include compensatory damages, punitive damages, and injunctive relief.

Problems That Could Arise

Proving the Public Policy: Identifying and proving a clear and fundamental public policy that has been violated can be challenging.
At-Will Employment Complications: Since California is an at-will employment state, distinguishing a lawful termination from a wrongful discharge can be complex.
Retaliation Claims: Employers might disguise the wrongful discharge as a termination for a legitimate reason, leading to difficulties in proving retaliation.
Varied Interpretations: Different courts may interpret what constitutes a violation of public policy differently.

Reasoning and Logic

Protection of Fundamental Rights: The doctrine serves to protect employees from being forced into unethical situations or from being punished for upholding ethical standards.
Encouraging Ethical Business Practices: It discourages employers from engaging in illegal or unethical practices.
Balancing Employer and Employee Rights: It seeks a balance between the employer’s right to discharge employees and the employee’s right to be free from unethical and illegal demands.

Conclusion

Wrongful discharge in violation of public policy in California is a critical tool in protecting employees against unethical and illegal practices by employers. However, the complexity of proving such cases, especially in an at-will employment state, can present significant challenges. The law aims to balance the rights of employees to act according to ethical and legal standards without fear of losing their jobs against the rights of employers to make business decisions.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

Additional Information

Wrongful Discharge in Violation of Public Policy in California:

Introduction:

Wrongful discharge in violation of public policy is a legal concept that protects employees in California from being terminated when their termination goes against established public policies. It is a significant aspect of employment law in the state, and understanding its legal consequences and essential factual allegations is crucial. In this overview, we will delve into the law surrounding wrongful discharge in violation of public policy in California, including its elements, legal consequences, potential problems, and examples.

Legal Framework in California:
In California, employment relationships are presumed to be at-will, meaning that either the employer or the employee can terminate the employment relationship at any time and for any reason, with some exceptions. Wrongful discharge in violation of public policy is one such exception.
Essential Factual Allegations:
To establish a claim for wrongful discharge in violation of public policy in California, an employee typically must allege and prove the following elements:a. Employment Relationship: The existence of an employer-employee relationship between the parties.b. Termination: That the employee was terminated from their employment.c. Public Policy Violation: That the termination was in violation of a fundamental public policy recognized by California law.d. Causation: A causal connection between the employee’s termination and the public policy violation.
Examples of Public Policy Violations:
California recognizes a variety of public policies that, if violated through termination, may give rise to a wrongful discharge claim. Some examples include:a. Whistleblower Protection: An employee cannot be terminated for reporting illegal activities or unsafe working conditions to authorities or supervisors.b. Discrimination and Harassment: Termination based on an employee’s protected characteristics (e.g., race, gender, age) or in retaliation for reporting discrimination or harassment can constitute a public policy violation.c. Refusal to Engage in Illegal Activities: An employee cannot be terminated for refusing to participate in illegal activities on the employer’s behalf.d. Jury Duty and Voting Rights: Firing an employee for serving on a jury or exercising their voting rights can be considered wrongful discharge.
Legal Consequences:
If an employee successfully proves a claim of wrongful discharge in violation of public policy, they may be entitled to various remedies, including:a. Reinstatement: The employee may be reinstated to their former position.b. Back Pay and Front Pay: Compensation for lost wages due to the wrongful termination.c. Emotional Distress Damages: Compensation for emotional distress resulting from the wrongful termination.d. Punitive Damages: In cases of egregious misconduct by the employer, punitive damages may be awarded to punish the employer.
Potential Problems and Challenges for Employees:
While wrongful discharge in violation of public policy provides important protections for employees, some challenges and problems can arise:a. Establishing Public Policy: Employees must clearly demonstrate that the termination violates a specific public policy, which can be subject to interpretation.b. Causation: Proving a direct link between the termination and the public policy violation can be challenging, especially if there were other factors involved in the termination decision.c. Defenses by Employers: Employers may raise defenses such as legitimate business reasons for the termination, which can complicate the case.d. Statute of Limitations: There is a limited timeframe in which an employee must file a wrongful discharge claim, and missing the deadline can result in the loss of the claim.

Conclusion:

Wrongful discharge in violation of public policy is a critical aspect of employment law in California, providing protection to employees against termination that contravenes public policy. Employees should consult with legal counsel to navigate the complexities of these claims, while employers should be aware of the legal consequences and strive to adhere to public policy in their employment practices to mitigate the risk of such claims.

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Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2430. Wrongful Discharge in Violation of Public Policy—Essential Factual Elements

[Name of plaintiff] claims [he/she/nonbinary pronoun] was discharged from employment for reasons that violate a public policy. It is a violation of public policy [specify claim in case, e.g., to discharge someone from employment for refusing to engage in price fixing]. To establish this claim, [name of plaintiff] must prove all of the following:

That [name of plaintiff] was employed by [name of defendant];
That [name of defendant] discharged [name of plaintiff];
That [insert alleged violation of public policy, e.g., “[name of plaintiff]’s refusal to engage in price fixing”] was a substantial motivating reason for [name of plaintiff]’s discharge;
That [name of plaintiff] was harmed; and
That the discharge was a substantial factor in causing [name of plaintiff] harm.

New September 2003; Revised June 2013, June 2014, December 2014, November

2018, May 2020

Directions for Use

The judge should determine whether the purported reason for firing the plaintiff would amount to a violation of public policy. (See Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1092 [4 Cal.Rptr.2d 874, 824 P.2d 680]; overruled on other grounds

in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80 fn. 6 [78 Cal.Rptr.2d 16, 960 P.2d 1046].) The jury should then be instructed that the alleged conduct would constitute a public-policy violation if proved.

Note that there are two causation elements. First, there must be causation between the public policy violation and the discharge (element 3). This instruction uses the term “substantial motivating reason” to express this causation element. “[S]ubstantial motivating reason” has been held to be the appropriate standard for cases alleging termination in violation of public policy. (Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 479 [161 Cal.Rptr.3d 758]; see

Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507, “Substantial Motivating Reason” Explained.) Element 5 then expresses a second causation requirement; that the plaintiff was harmed as a result of the wrongful discharge.

If plaintiff alleges the plaintiff was forced or coerced to resign, then CACI

No. 2431, Constructive Discharge in Violation of Public Policy—Plaintiff Required to Violate Public Policy, or CACI No. 2432, Constructive Discharge in Violation of

Public Policy—Plaintiff Required to Endure Intolerable Conditions That Violate Public Policy, should be given instead. See also CACI No. 2510, “Constructive Discharge” Explained.

This instruction may be modified for adverse employment actions other than discharge, for example demotion, if done in violation of public policy. (See Garcia

v. Rockwell Internat. Corp. (1986) 187 Cal.App.3d 1556, 1561 [232 Cal.Rptr. 490], disapproved on other grounds in Gantt, supra, 1 Cal.4th at p. 1093 [public policy forbids retaliatory action taken by employer against employee who discloses information regarding employer’s violation of law to government agency].) See also CACI No. 2509, “Adverse Employment Action” Explained.

For an instruction on damages, give CACI No. 3903P, Damages From Employer for Wrongful Discharge (Economic Damage).

Sources and Authority

“ ‘[W]hile an at-will employee may be terminated for no reason, or for an arbitrary or irrational reason, there can be no right to terminate for an unlawful reason or a purpose that contravenes fundamental public policy. Any other conclusion would sanction lawlessness, which courts by their very nature are bound to oppose.’ ” (Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1138–1139 [69 Cal.Rptr.3d 445], internal citations omitted.)
“[W]hen an employer’s discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions.” (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170 [164 Cal.Rptr. 839, 610 P.2d 1330].)
“The elements of a claim for wrongful discharge in violation of public policy are

(1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Garcia-Brower v. Premier Automotive Imports of CA, LLC (2020) 55 Cal.App.5th 961, 973 [269 Cal.Rptr.3d 856], internal citation omitted.)

“[T]his court established a set of requirements that a policy must satisfy to support a tortious discharge claim. First, the policy must be supported by either constitutional or statutory provisions. Second, the policy must be ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual. Third, the policy must have been articulated at the time of the discharge. Fourth, the policy must be ‘fundamental’ and ‘substantial.’ ” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889–890 [66

Cal.Rptr.2d 888, 941 P.2d 1157], footnote omitted.)

“Policies are not ‘public’ (and thus do not give rise to a common law tort claim) when they are derived from statutes that ‘simply regulate conduct between private individuals, or impose requirements whose fulfillment does not implicate fundamental public policy concerns.’ ” (Diego v. Pilgrim United Church of Christ (2014) 231 Cal.App.4th 913, 926 [180 Cal.Rptr.3d 359].)
“[T]he cases in which violations of public policy are found generally fall into four categories: (1) refusing to violate a statute; (2) performing a statutory obligation (3) exercising a statutory right or privilege; and (4) reporting an alleged violation of a statute of public importance.” (Gantt, supra, 1 Cal.4th at

pp. 1090–1091, internal citations and footnote omitted, overruled on other grounds in Green, supra, 19 Cal.4th at p. 80, fn. 6; accord Stevenson, supra, 16 Cal.4th at p. 889.)

“[T]ermination of an employee most clearly violates public policy when it contravenes the provision of a statute forbidding termination for a specified reason . . . .” (Diego, supra, 231 Cal.App.4th at p. 926)
- “[Discharge because of employee’s] [r]efusal to violate a governmental regulation may also be the basis for a tort cause of action where the administrative regulation enunciates a fundamental public policy and is authorized by statute.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 708–709 [96 Cal.Rptr.3d 159].)
- “In the context of a tort claim for wrongful discharge, tethering public policy to specific constitutional or statutory provisions serves not only to avoid judicial interference with the legislative domain, but also to ensure that employers have adequate notice of the conduct that will subject them to tort liability to the employees they discharge . . . .” (Stevenson, supra, 16 Cal.4th at p. 889.)
- “[A]n employee need not prove an actual violation of law; it suffices if the employer fired him for reporting his ‘reasonably based suspicions’ of illegal activity.” (Green, supra, 19 Cal.4th at p. 87, internal citation omitted.)
- “[A]n employer’s authority over its employee does not include the right to demand that the employee commit a criminal act to further its interests, and an employer may not coerce compliance with such unlawful directions by discharging an employee who refuses to follow such an order ” (Tameny,

supra, 27 Cal.3d at p. 178.)

“[T]here is a ‘fundamental public interest in a workplace free from illegal practices ’ ‘[T]he public interest is in a lawful, not criminal, business

operation. Attainment of this objective requires that an employee be free to call his or her employer’s attention to illegal practices, so that the employer may prevent crimes from being committed by misuse of its products by its employees.’ ” (Yau v. Allen (2014) 229 Cal.App.4th 144, 157 [176 Cal.Rptr.3d

824].)

“Whether an employer has conducted an adequate investigation before dismissing an employee for an unlawful purpose is generally a question of fact for the jury.” (Garcia-Brower, supra, 55 Cal.App.5th at p. 974.)
- “An action for wrongful termination in violation of public policy ‘can only be asserted against an employer. An individual who is not an employer cannot commit the tort of wrongful discharge in violation of public policy; rather, he or she can only be the agent by which an employer commits that tort.’ ” (Kim v.

Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1351 [172 Cal.Rptr.3d 686], original italics.)

“Sex discrimination in employment may support a claim of tortious discharge in violation of public policy.” (Kelley v. The Conco Cos. (2011) 196 Cal.App.4th 191, 214 [126 Cal.Rptr.3d 651].)
“In sum, a wrongful termination against public policy common law tort based on sexual harassment can be brought against an employer of any size.” (Kim, supra, 226 Cal.App.4th at p. 1351.)
“To establish a claim for wrongful termination in violation of public policy, an employee must prove causation. (See CACI No. 2430 [using phrase ‘substantial motivating reason’ to express causation].) Claims of whistleblower harassment and retaliatory termination may not succeed where a plaintiff ‘cannot demonstrate the required nexus between his reporting of alleged statutory violations and his allegedly adverse treatment by [the employer].’ ” (Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1357 [181 Cal.Rptr.3d

68].)

“It would be nonsensical to provide a different standard of causation in FEHA cases and common law tort cases based on public policies encompassed by FEHA.” (Mendoza v. Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334, 1341 [166 Cal.Rptr.3d 720].)
“If claims for wrongful termination in violation of public policy must track FEHA, it necessarily follows that jury instructions pertinent to causation and motivation must be the same for both. Accordingly, we conclude the trial court did not err in giving the instructions set forth in the CACI model jury instructions.” (Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1323 [200 Cal.Rptr.3d 315].)
“Under California law, if an employer did not violate FEHA, the employee’s claim for wrongful termination in violation of public policy necessarily fails.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1169 [217 Cal.Rptr.3d 258].)
“FEHA’s policy prohibiting disability discrimination in employment is sufficiently substantial and fundamental to support a claim for wrongful termination in violation of public policy.” (Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 660 [163 Cal.Rptr.3d 392].)
“Although the fourth cause of action references FEHA as one source of the public policy at issue, this is not a statutory FEHA cause of action. FEHA does not displace or supplant common law tort claims for wrongful discharge.” (Kim, supra, 226 Cal.App.4th at p. 1349.)
“[T]o the extent the trial court concluded Labor Code section 132a is the exclusive remedy for work-related injury discrimination, it erred. The California Supreme Court held ‘[Labor Code] section 132a does not provide an exclusive remedy and does not preclude an employee from pursuing FEHA and common

law wrongful discharge remedies.’ ” (Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1381 [196 Cal.Rptr.3d 68].)

“California’s minimum wage law represents a fundamental policy for purposes of a claim for wrongful termination or constructive discharge in violation of public policy.” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 831–832 [166 Cal.Rptr.3d 242].)
- “ ‘Labor Code section 1102.5, subdivision (b), which prohibits employer retaliation against an employee who reports a reasonably suspected violation of the law to a government or law enforcement agency, reflects the broad public policy interest in encouraging workplace “whistleblowers,” who may without fear of retaliation report concerns regarding an employer’s illegal conduct. This public policy is the modern day equivalent of the long-established duty of the citizenry to bring to public attention the doings of a lawbreaker. [Citation.]

. . .’ ” (Ferrick, supra, 231 Cal.App.4th at p. 1355.)

“That [defendant]’s decision not to renew her contract for an additional season

might have been influenced by her complaints about an unsafe working condition

. . . does not change our conclusion in light of the principle that a decision not to renew a contract set to expire is not actionable in tort.” (Touchstone Television Productions v. Superior Court (2012) 208 Cal.App.4th 676, 682 [145 Cal.Rptr.3d

766], original italics.)

“ ‘ “[P]ublic policy’ as a concept is notoriously resistant to precise definition, and

. . . courts should venture into this area, if at all, with great care…….. ”

[Citation.] Therefore, when the constitutional provision or statute articulating a public policy also includes certain substantive limitations in scope or remedy, these limitations also circumscribe the common law wrongful discharge cause of action. Stated another way, the common law cause of action cannot be broader than the constitutional provision or statute on which it depends, and therefore it ‘presents no impediment to employers that operate within the bounds of law.” [Citation.]’ ” (Dutra v. Mercy Medical Center Mt. Shasta (2012) 209 Cal.App.4th 750, 756 [146 Cal.Rptr.3d 922], original italics.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,

§ 255 et seq.

Chin et al., California Practice Guide: Employment Litigation, Ch. 5-(I)B, Wrongful Discharge In Violation Of Public Policy (Tameny Claims), ¶¶ 5:47, 5:50, 5:70, 5:105, 5:115, 5:150, 5:151, 5:170, 5:195, 5:220, 5:235 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Public Policy Violations, § 5.45

4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination and Discipline, § 60.04 (Matthew Bender)

21 California Forms of Pleading and Practice, Ch. 249, Employment Law: Termination and Discipline, §§ 249.12, 249.50–249.52 (Matthew Bender)

10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful

Termination and Discipline, §§ 100.41–100.61B (Matthew Bender) California Civil Practice: Employment Litigation §§ 6:23–6:25

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

Additional Information

Wrongful Discharge in Violation of Public Policy in California:Introduction: Wrongful discharge in violation of public policy is a legal concept that protects employees in California from being terminated when their termination goes against established public policies. It is a significant aspect of employment law in the state, and understanding its legal consequences and essential factual allegations is crucial. In this overview, we will delve into the law surrounding wrongful discharge in violation of public policy in California, including its elements, legal consequences, potential problems, and examples.

Legal Framework in California: In California, employment relationships are presumed to be at-will, meaning that either the employer or the employee can terminate the employment relationship at any time and for any reason, with some exceptions. Wrongful discharge in violation of public policy is one such exception.Essential Factual Allegations: To establish a claim for wrongful discharge in violation of public policy in California, an employee typically must allege and prove the following elements:a. Employment Relationship: The existence of an employer-employee relationship between the parties.b. Termination: That the employee was terminated from their employment.c. Public Policy Violation: That the termination was in violation of a fundamental public policy recognized by California law.d. Causation: A causal connection between the employee’s termination and the public policy violation.Examples of Public Policy Violations: California recognizes a variety of public policies that, if violated through termination, may give rise to a wrongful discharge claim. Some examples include:a. Whistleblower Protection: An employee cannot be terminated for reporting illegal activities or unsafe working conditions to authorities or supervisors.b. Discrimination and Harassment: Termination based on an employee’s protected characteristics (e.g., race, gender, age) or in retaliation for reporting discrimination or harassment can constitute a public policy violation.c. Refusal to Engage in Illegal Activities: An employee cannot be terminated for refusing to participate in illegal activities on the employer’s behalf.d. Jury Duty and Voting Rights: Firing an employee for serving on a jury or exercising their voting rights can be considered wrongful discharge.Legal Consequences: If an employee successfully proves a claim of wrongful discharge in violation of public policy, they may be entitled to various remedies, including:a. Reinstatement: The employee may be reinstated to their former position.b. Back Pay and Front Pay: Compensation for lost wages due to the wrongful termination.c. Emotional Distress Damages: Compensation for emotional distress resulting from the wrongful termination.d. Punitive Damages: In cases of egregious misconduct by the employer, punitive damages may be awarded to punish the employer.Potential Problems and Challenges for Employees: While wrongful discharge in violation of public policy provides important protections for employees, some challenges and problems can arise:a. Establishing Public Policy: Employees must clearly demonstrate that the termination violates a specific public policy, which can be subject to interpretation.b. Causation: Proving a direct link between the termination and the public policy violation can be challenging, especially if there were other factors involved in the termination decision.c. Defenses by Employers: Employers may raise defenses such as legitimate business reasons for the termination, which can complicate the case.d. Statute of Limitations: There is a limited timeframe in which an employee must file a wrongful discharge claim, and missing the deadline can result in the loss of the claim.

Conclusion: Wrongful discharge in violation of public policy is a critical aspect of employment law in California, providing protection to employees against termination that contravenes public policy. Employees should consult with legal counsel to navigate the complexities of these claims, while employers should be aware of the legal consequences and strive to adhere to public policy in their employment practices to mitigate the risk of such claims.