Washington is an At-Will State Isn't It?

Under most circumstances, Washington is an at-will state, which means that either the employer or the employee can end the employment relationship at any time, with or without notice and with our without cause. There are numerous exceptions to the at-will doctrine that attorneys who advise employers or employees should be aware of. These exceptions have developed over time and are still evolving. The following are some examples. They are not all-inclusive.

Contractual Exceptions to the At-will Doctrine

Contractual exceptions to the at-will doctrine generally exist in the context of collective bargaining agreements, employment contracts and employee manuals or other promises of continued employment or specific treatment by an employer. Generally, collective bargaining agreements have a progressive discipline policy for most infractions and a grievance process for appealing from a disciplinary or termination decision.

Employment contracts may have a for-cause provision written into them that lists specific acts or omissions that would be grounds for termination and/or provides for giving notice and an opportunity to cure. Some may be hybrids, with specific conduct resulting in termination for cause and other more general conduct such as poor performance being grounds for termination only after notice and an opportunity to cure the deficiency.

Employment contracts can be created by manuals or other promises of specific treatment under specific circumstances, promises of fair treatment, or representations that the employer has a system of progressive discipline or other pre-termination process that will be followed. Most employers are aware of this possibility and draft their manuals and policies to include a statement that the employee is still at-will, and that the employer has the flexibility to deviate from the process at its discretion.

Statutory Exceptions to the At-will Doctrine

There are a wide variety of statutory exceptions to the at-will doctrine. They are found in statutes governing employers’ treatment of employees. For example, the Civil Service laws set requirements that must be met for termination of Civil Service employees. Plant closings and mass layoffs require notice in many circumstances under the Worker Adjustment and Retraining Notification Act (WARN), 29 USC § 2101 et seq., 20 CFR 639.

Additionally, many statutes have provisions that make it illegal to terminate employees who have exercised their legal rights under the statute, or who have filed a complaint under the statute. E.g., RCW 18.20.185(7) (boarding home complaints); RCW 18.51.220 (nursing home complaints); RCW 28A.600.480 (reporting bullying, harassing or intimidating behavior in schools); RCW 42.40.020 (state employee whistleblowers); RCW 42.41.020 (local government whistleblowers); RCW 49.46.100 (minimum wage laws); RCW Ch. 49.60 et. al. (anti-discrimination laws); and RCW 51.48.025 (workers’ compensation laws). Sometimes, such terminations are referred to as terminations in violation of public policy, but the public policy exception to the at-will doctrine is much broader than just retaliatory discharge, as discussed in more detail below.

Public Policy Exceptions to the At-Will Doctrine

Public policy tort actions have generally been allowed in four different situations:

1. where employees are fired for refusing to commit an illegal act;
2. where employees are fired for performing a public duty or obligation, such as serving jury duty;
3. Dicomes v. State, 113 Wn. 2d 612, 618, 782 P.2d 1002 (1989).

In creating a public policy tort action, the Washington State Supreme Court cautioned the exception should be narrowly construed in order to guard against frivolous lawsuits: “In determining whether a clear mandate of public policy is violated, courts should inquire whether the employer's conduct contravenes the letter or purpose of a constitutional, statutory, or regulatory provision or scheme. Prior judicial decisions may also establish the relevant public policy. However, courts should proceed cautiously if called upon to declare public policy absent some prior legislative or judicial expression on the subject.” Thompson v. St. Regis Paper Co., 102 Wn. 2d 219, 232, 685 P.2d 1081 (1984).

In Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 941, 913 P.2d 377 (1996), the court established a more refined test in order to cover a previously-unencountered situation where a work rule that was legitimate on its face (not leaving an armored truck unattended) was violated by an employee who broke the work rule to attempt to save a bank worker who was being chased by a bank robber with a knife. This newer rule, which builds on and to expands the criteria in Dicomes, is as follows:

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

Explaining the holding in Gardner, the court stated: “We find that Gardner's discharge for leaving the truck and saving a woman from an imminent life threatening situation violates the public policy encouraging such heroic conduct. This holding does not create an affirmative legal duty requiring citizens to intervene in dangerous life threatening situations. We simply observe that society values and encourages voluntary rescuers when a life is in danger. Additionally, our adherence to this public policy does nothing to invalidate Loomis' work rule regarding drivers' leaving the trucks.

The rule's importance cannot be understated, and drivers do subject themselves to a great risk of harm by leaving the driver's compartment. Our holding merely forbids Loomis from firing Gardner when he broke the rule because he saw a woman who faced imminent life-threatening harm, and he reasonably believed his intervention was necessary to save her life. Finally, by focusing on the narrow public policy encouraging citizens to save human lives from life threatening situations, we continue to protect employers from frivolous lawsuits.” 128 Wn.2d at 950.

The Gardner decision shows a willingness on the part of the courts to expand the public policy exception to the at-will doctrine where the courts believe that it is important to do so. However, the courts have not abandoned the at-will doctrine despite the exceptions to it, and it still applies in many situations.

Suggestions for Reducing the Likelihood of a Wrongful Termination Claim

The following are some steps that an employer can take that may reduce the likelihood of a wrongful termination claim, depending on the circumstances:

• Adopt and enforce policies against retaliation for reporting discrimination, harassment or other unlawful conduct.
• If the employee has a contract or collective bargaining agreement, follow its terms before terminating the employee.
• Review the employee manual and other communications to employees to endure that no inadvertent contracts or obligations of continuing employment or specific treatment were created.
• Avoid learning the details of employees' private lives unless the information is necessary for the employee to perform essential work functions. If an employer does not know that an employee is a member of a protected class, then it is difficult to prove that an employer terminated an employee because the employee was part of a protected class.
• Constructive discharge is treated the same as a termination. An employer cannot avoid liability by making the employee miserable enough to quit.
• A generous termination package may make an employee less likely to sue, but will not preclude him or her from suing or filing a claim with an agency unless a valid release is signed.
• Contemporaneous documentation of performance issues will make it much easier to establish that termination was based on something other than a protected factor. Also document (among other things) efforts to accommodate a disability, the need for a bona fide occupational qualification, and business necessities for terminating employees based on marital status.