A recent Washington Supreme Court decision demonstrates how the interaction between administrative and common law is often critically important to the adjudication of employee claims. Specifically, the court held that an employee has no common law right to a claim of wrongful discharge solely because they are fired for reporting illegal or unsafe conditions of employment where other administrative or legal structures are deemed adequate for protection of the particular public policy which the employee claims the employer is violating.
In Cudney v. Alsco, Inc., 172 Wn.2d 524 (2011) the employee claimed that his employer wrongfully terminated his employment because he notified his employer’s assistant general manager and human resources manager that his general manager seemed at times intoxicated at work and drove a company vehicle while apparently under the influence of alcohol. The employee claimed that his complaints were made in furtherance of public policies embodied in the Washington Industrial Safety and Health Act of 1973 (“WISHA”), chapter 49.17 RCW, and in Washington’s laws against driving while under the influence of intoxicants (“DUI”).
The employee in Cudney filed his common law claim for wrongful discharge against his employer in the federal district court. That court then submitted two questions to the Washington Supreme Court: (1) Whether the regulatory and administrative provisions of WISHA adequately promote the public policy of insuring workplace safety and protecting workers who report safety violations so as to preclude a separate common law claim of wrongful discharge by an employee who is allegedly fired for reporting such violations? and, (2) Whether the DUI laws of the state adequately protect the public from drunken drivers so as to preclude a separate common law claim for wrongful discharge by an employee who is allegedly fired for reporting violations of that law by their employer?
The Washington Supreme Court in Cudney replied “yes” to both questions. The Court noted that in order to establish a common law right for wrongful discharge in Washington, a terminated employee must satisfy all elements of a four –factor test: (1) a clarity element; (2) a jeopardy element; (3) a causation element; and, (4) an absence of justification element. The Court found that analysis of the district court’s questions required it to only address the jeopardy element.
Applying a “strict adequacy standard”, the court held that in order to establish the jeopardy element of a common law right to wrongful discharge, the Court observed that:
“. . . a tort of wrongful discharge in violation of public policy should be precluded unless the public policy is inadequately promoted through other means . . .” and is, “. . . only a narrow exception to the underlying doctrine of at-will employment.”
The Court found that WISHA provided adequate protections to both the public and the complaining worker, including a statutory claim for wrongful discharge in the event an employee is fired for making an administrative complaint. Likewise, the Court found that Washington’s DUI criminal statutes were adequate to protect the public and that the plaintiff’s complaint to his employer was not the “only available adequate means” to protect the public as required to satisfy the jeopardy element of the common law tort claim.
In Anderson v. Akzo Nobel Coatings, 172 Wn.2d 593 (2011), decided a week after Cudney, the Court reaffirmed its decision that an employee has no common law claim for wrongful discharge on account of workplace safety complaints where the WISHA provides a statutory remedy.
The decisions in Cudney and Anderson demonstrate, again, the need to always consider the pertinent statutory and administrative aspects of any employment claim. Failure to carefully consider those aspects of their claims proved fatal to the plaintiff’s common law wrongful discharge claims in both cases.