Background:

At Will Employment.

"Employment at will" is a common law doctrine which generally allows - in the absence of a contract or law that says otherwise - an employer to fire an employee for any reason without fear of liability.

Exception to the Rule — Tort of Wrongful Termination in Violation of Public Policy.

Courts have recognized a public policy exception to the at will doctrine, predicating the exception upon tort principles and utilizing it in instances where application of the terminable at will doctrine would lead to a result clearly inconsistent with a stated public policy and the community interest it advances.

The Washington Supreme Court has held that the elements of a public policy tort case are:

The plaintiffs must prove the existence of a clear public policy (the clarity element).
The plaintiffs must prove that discouraging the conduct in which they engaged would jeopardize the public policy (the jeopardy element).
The plaintiffs must prove that the public-policy-linked conduct caused the dismissal (the causation element).
The defendant must not be able to offer an overriding justification for the dismissal (the absence of justification element).

In 2011, in a 5-4 decision in the case of Cudney v. ALSCO, Inc., the Washington Supreme Court addressed the "jeopardy" element in a case involving a claim by an employee who was fired after he reported that a managerial employee had driven a company vehicle while drunk. Holding that a separate claim for wrongful termination in violation of public policy was precluded, the court determined that current laws and regulations provide an adequate means of promoting the public policies of ensuring workplace safety, protecting against retaliation for reporting safety violations, and protecting the public from the dangers of drinking and driving.

The Washington Law Against Discrimination.

The Washington Law Against Discrimination (WLAD) provides that it is an "unfair practice" to discriminate against a person in a variety of transactions, including employment, on the basis of race, color, creed, national origin, sex, marital status, sexual orientation, age, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability. There is a whistleblower provision included in the WLAD.

The WLAD includes an administrative hearing process, and also explicitly permits a civil cause of action to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys' fees or any other appropriate remedy authorized by the WLAD, the U.S. Civil Rights Act of 1964, or the federal Fair Housing Act.

Summary of Bill:

Intent.

Intent is expressed to protect employees who act in furtherance of public policy and to reject Cudney v. ALSCO.

Statutory Cause of Action Created.

A new section is added to the WLAD, making it unlawful for an employer to take materially adverse action against an employee where retaliation is a substantial factor in the employer's decision to take adverse action. A statutory civil cause of action is made available for a violation, notwithstanding the existence of any other means to protect public policy, and independent of any civil cause of action or remedy that may exist at common law.

Definitions.

For purposes of this action, "retaliate" means "to commit a materially adverse action against an employee for conduct that the employee reasonably believes promotes a clear mandate of public policy. Protected conduct includes, but is not limited to, refusing to commit an illegal act, performing a legal duty or obligation, exercising a legal right or privilege, or reporting employer misconduct or whistleblowing."

An "adverse action" is not material if it has only a trivial effect.

Elements and Burden of Proof.

In order to maintain an action for the violation of public policy, an employee must show all of the following:

That a clear public policy exists, which may be reflected in federal, state, or local laws, including constitutions, statutes, regulations, ordinances, and codes, as well as prior judicial decisions. Whether a clear public policy exists is a question of law for the court to decide.
That discouraging the conduct the employee engaged in would jeopardize the public policy. In order to establish this element, an employee must show that the conduct relates to public policy, and that the threat of adverse action will discourage others from engaging in such conduct.
That the public-policy related conduct was a substantial factor in the employers' decision to take adverse action.

In the event that an employer asserts that there is an overriding justification for the decision to take adverse action, the employer bears the burden of asserting and proving this affirmative defense, including that the balance of public policies relied upon by the employer outweigh the public policies relied upon by the employee. Whether there is an overriding justification is a question of law for the court to decide.

This affirmative defense is only available to an employer admitting that adverse action was taken because of the employee's public policy related conduct.

Statute of Limitations.

The statute of limitations for bringing suit is three years.

Remedies.

Remedies for violation include injunctive relief as well as actual damages, the recovery of the costs of the lawsuit, including reasonable attorneys' fees, and any other appropriate remedy authorized under the WLAD.