AT-WILL EMPLOYMENT RULE
Washington has been an “at-will” employment state since at least 1928, and under this this doctrine an employer can discharge an at-will employee for no cause, good cause or even cause morally wrong. Conversely, an employee has the absolute right to quit his or her employment at-will. However, there are three recognized exceptions to the general at-will employment rule: (1) Contractual; (2) Statutory; and (3) Judicial. This article will address the “Judicial” exception.
THE JUDICIAL EXCEPTION: 2 APPROACHES
A tort is a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability. In the State of Washington, there are two approaches to establishing the Tort of Wrongful Discharge–also known as the “Judicial” exception to the at-will employment rule–as follows: (1) Four-Scenarios Approach; and (2) Refined Approach.
The Four Scenarios Approach
First, under this tort’s common analytical framework, there are four scenarios that will potentially expose the employer to liability: (1) when employees are fired for refusing to commit an illegal act, (2) when employees are fired for performing a public duty or obligation, such as serving jury duty, (3) when employees are fired for exercising a legal right or privilege, such as filing workers’ compensation claims, and (4) when employees are fired in retaliation for reporting employer misconduct, i.e., whistle-blowing. Rose v. Anderson Hay & Grain Co., 184 Wn.2d 268, 286-87, 358 P.3d 1139 (Wash. 2015).
Under each scenario, the plaintiff is required to identify the recognized public policy and demonstrate that the employer contravened that policy by terminating the employee. Id. at 276. However, there is a second, more refined approach, to establishing liability under the Tort of Wrongful Discharge.
The More Refined Approach
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. Rose v. Anderson Hay & Grain Co., 184 Wn.2d 268, 287, 358 P.3d 1139 (Wash. 2015). In those circumstances, the courts look to the four-part Perritt framework for guidance. See id.
Under the Perritt framework, courts examine (1) the existence of a clear public policy (clarity element), (2) whether discouraging the conduct in which [the employee] engaged would jeopardize the public policy (jeopardy element), (3) whether the public-policy-linked conduct caused the dismissal (causation element), and (4) whether the employer is able to offer an overriding justification for the dismissal (absence of justification element). Id. at 277. (internal citations and quotation marks omitted) (emphasis added).