San Francisco Attorney Michael Papuc represents employees in wrongful termination actions against employers.
Employment contracts are generally terminable at will (Lab.Code § 2922). California courts recognize a narrow exception to this rule: "(A)n employer's traditional broad authority to discharge an at-will employee may be limited by statute ... or by considerations of public policy." (Tameny v. Atlantic Richfield Co.(1980) 27 Cal.3d 167, 172)
To establish a claim for wrongful discharge in violation of public policy, each of the following must be proved:
-An employer-employee relationship;
-Employer terminated plaintiff's employment (or took other adverse employment action;
-Termination of plaintiff's employment was a violation of public policy (or more accurately, a "nexus" exists between the termination and the employee's protected activity;
-The termination was a legal cause of plaintiff's damage; and
-The nature and the extent of plaintiff's damage.(See Holmes v. General Dynamics Corp.(1993) 17 Cal.App.4th 1418, 1426, fn. 8.)
Independent contractors are not employees, and therefore may not bring public policy claims. However, depending on control employer has over independent contractor, the contractor may be deemed an employee for purposes of bringing an action.
Tameny claims extend to demotions, suspensions without pay, whistle blowing, and other adverse employer decisions for reasons which violate public policy, "even though the ultimate sanction of discharge has not been imposed." (Garcia v. Rockwell Int'l Corp.(1986) 187 Cal.App.3d 1556, 1562.)
The existence of a pertinent public policy is crucial to a Tameny claim. A four-part test is utilized in determining whether a particular policy can support a common law wrongful discharge claim. The policy in question must be:
1. Based on either a constitutional or statutory provision (or ethical rules or regulations enacted under statutory authority);
2."Public" in the sense that it "inures to the benefit of the public" rather than merely serving the interests of the individual;
3. Well established at the time of discharge; and
4 Substantial and fundamental.(Silo v. CHW Med. Found.(2002) 27 Cal.4th 1097, 1104).)
Because the employer's violation of a statute on a particular subject is also a violation of public policy, firing an employee for reporting the violation to appropriate authorities violates public policy.(Jie v. Liang Tai Knitwear Co.(2001) 89 Cal.App.4th 654, 660–661.) The employee need not prove that the employer actually violated the law: "(I)t suffices if the employer fired him for reporting his ‘reasonably based suspicions' of illegal activity." (Green v. Ralee Eng. Co.(1998) 19 Cal.4th 66, 87, 78.)
The policy violated by the employment termination must be one inuring to the benefit of the public at large rather than to a particular employer or employee. Policies are not "public" 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." (Foley v. Interactive Data Corp.(1988) 47 Cal.3d 654, 669–670.)
The law surrounding the facts of each claim is complex and contains many subtleties. The employee will have difficulty finding another job if she sues the former employer, and cannot expect former co-employees to testify favorably for the employee, because their jobs will be at stake. It is good practice for the employee to obtain witness statements before the lawsuit is brought.