WA Supreme Court Alters Discharge Against Public Policy
Its not often that you see the court holding on to three separate cases and announcing a change in the common law. That's exactly what happened this morning with a trio of cases involving the tort of discharge contrary to public policy.
The three cases, Rose v. Anderson Hay & Grain Co.; Rickman v. Premera Blue Cross; and Becker v. Community Health Systems, Inc., involved fairly different fact patters. Rose alleged he was discharged for failing to falsify his drive time records to appear to be in compliance with federal law. Rickman alleged she was terminated for raising concerns of HIPPA violations. Becker alleged he was terminated for refusing, as CFO, to certify a lower loss number that did not match his calculations.
Two of the three claims of discharge contrary to public policy were dismissed by the trial court. Under the law as it existed yesterday, the tort had what is called a jeopardy requirement. That is to say that the tort could only be invoked if there were no other available remedy would promote the policy. In two of the cases, there were other remedies available. Rose had an administrative remedy through the Secretary of Labor, which he did not pursue. The court in Rickman dismissed the case, finding that Premera's own internal reporting systems promoted the policy. The third case, Becker, was certified to the Court of Appeals, which had found Sarbanes-Oxley and Dodd-Frank did not provide an adequate remedy, and thus the jeopardy element was satisfied.
Well, say goodbye to the jeopardy element. The rule was articulated in Rose:
[T]he existence of alternative statutory remedies, regardless of whether or not they are adequate, does not prevent the plaintiff from bringing a wrongful discharge claim. Reviewing the origination of the tort and its underlying purpose, we find that our wrongful discharge jurisprudence travels along two irreconcilable tracks, each of which would dictate a different result in Rose's case. The discrepancy requires us to clarify and embrace only one. We hold that the "adequacy of alternative remedies'' analysis must be discarded.
As a practical matter, this means it has become far easier for Plaintiffs to assert a claim for wrongful discharge against public policy, and has limited the ability to obtain dismissal of these claims. Expect to see more complaints alleging this tort now that no other remedies need be considered.