“At Will” Employment in Washington – Less Restrictive Than You Think

Washington has long been known as an “employment at will” state. Contrary to what most lay people and some attorneys believe, this terminology does not mean that an employer in the State can terminate an employee at any time, for any reason, or for no reason at all.  In fact, the multitude of exceptions to this general rule, many of which are set out in State and Federal statutes extended and defined by case law, have created significant and meaningful employee protection for Washington employees such that continued common usage of the term “at will” is either quaint or misleading.  In any case, the term is not helpful in guiding employers or employees, all of whom should gain a deeper understanding of their respective rights and responsibilities.

One could argue that the common shorthand reference to Washington as an “at will” state serves the employer’s interests by dissuading or distracting employees from exploring their legal rights.  This becomes critical when an employee is confronted by termination, demotion, loss of benefits or other adverse action by their employer.  Given the common misunderstanding engendered by the use of the term “at will,” employees and employers in Washington should make it a point to develop an understanding of what type of employer conduct may be actionable. Given the large body of State and Federal law applicable to employment practices, employes and employees are well served by discussing the facts surrounding the termination with legal counsel with knowledge in this area who can advise if a claim, lawsuit, demotion, termination or demand for contractual arbitration is appropriate.  In making that determination both the nature of the adverse employment action and the employee’s membership in a legally defined “protected class” should be analyzed.

The range of legal recourse available to an employee for an adverse employment action are actually quite broad, especially considering the implication of the term “employment at will.” What follows is a non-exhaustive list of areas where the courts or legislature have allowed for an exception to the general “employment at will” rule in Washington:

1.     Violation of the Minimum Wage Act;

2.     Safety complaint regarding a job site safety issue;

3.     Discrimination in the workplace due to an employee’s membership in a particular class deemed worthy of protection by the legislature:

4.     Exercising a right such as taking protected leave. State and Federal law, including the Washington State Family Care Act, requires employers with 15 or more employees to provide eligible employees with up to 12 weeks of unpaid leave per year to care for a family member with a serious health condition.

5.     Violation of Equal Pay and Opportunities Act;

6.     Retaliation for exercising a legally protected right.

7.     Termination arising from breach of the terms of an Employment Contract; and

8.     Termination in violation of Public Policy

Items 1-6 operate as exceptions to the general  “employment at will” by virtue of specific statutes passed by the State and Federal government including laws against discrimination based on race, sex, handicap status, gender identity, and which also proscribe termination or other lesser “adverse employment actions” against a person due to their membership in a protected class.

Items 7-8 however, are fundamentally different exceptions in that they are not wholly dependent on existing statutory or case law.  An employee may make a claim for a breach of their terms of an employment contract that was drafted and executed by the employer and employee, both of whom agreed to its terms. For example, if an employee has a written contract for a specific term, and the employer terminates the employee before the end of the contract term, the employee may be able to sue the employer for breach of contract and collect money damages.  If a written employment contract exists, it may set out the appropriate basis for termination and notice, as well as procedures to be followed in the event of a breach by either the employee or employer. The interplay between statutory law and the interpretation of the contract is complex and goes beyond the scope of this article.

Item 8 hereinabove relates to wrongful termination or other adverse action by an employer that a Court determines was contrary to public policy, even if that action was not specifically proscribed by the legislature or established common law.   This is case by case Court created exception that is often plead by plaintiffs in their complaints, but in practice is rarely successful.  This cause of action exists for purposes of providing the employee recourse in an employment situation where the employer’s conduct was aberrant and should be discouraged but is not governed by statute or prior case law.   See generally Bostain v. Food Express, Inc., 159 Wn. 2d 700 (2006) (an employee terminated for filing a workers’ compensation claim could bring a wrongful termination claim against his employer); and see Wilmot v. Kaiser Aluminum & Chemical Corp, 118 Wn. 2d 46, 821 P.2d 18 (1991) (Employee terminated for refusing to sign a waiver of his right to sue his employer could bring a wrongful termination claim against his employer) 

Although the protections established by statute expand over time, allowing a claim based on activities contrary to recognized public policy, provide courts the freedom to decide cases based on common sense and accepted norms when justice so requires.

Proving the Case.

Claims for wrongful termination or retaliation present unique evidentiary challenges to the claimant/employee regardless of the context. It is assumed that employers are not apt to announce a discriminatory, retaliatory, or other improper motive when taking an adverse action towards an employee. The cases applying to Washington and Federal law allow employee/claimants to simply show a prima facie case with circumstantial evidence. Although an employee has the burden of establishing specific and material facts to support each element of his or her prima facie for discrimination, Courts have allowed cases to go forward based on a reasonable inference drawn from circumstantial evidence. 

  Once the plaintiff establishes a prima facie case, the burden shifts to the employer, who must articulate a legitimate, non-retaliatory reason for terminating the plaintiff. This is a burden of production, not persuasion. If the employer meets this burden, the burden shifts back to the plaintiff to show the employer’s stated reason is pretextual. In some cases, even if the employer has a legitimate basis for taking the adverse employment action, a plaintiff may meet their burden with evidence that the protected status or activity was a substantial factor motivating the employer taking the adverse action.

CONCLUSION

            The list of exceptions to the “employment at will” doctrine is not exhaustive. These specific examples are discussed in order to explicate the actual application and import of Washington’s “employment at will” doctrine.  It is important that employers and employees understand that term is essentially a misnomer and does not accurately describe the current state of the law in this State applicable to the employer/employee relationship.  This is vital knowledge to anyone faced with a decision to fire, hire, litigate or walk away. Any employee or employer concerned about specific actions or responses in a problematic employment relationship is well served to look for legal advice from attorneys with experience and expertise in this body of law.