Wrongful Termination - Independent Contractors

Many employers have argued that the tort of wrongful discharge in violation of public policy can only be brought by employees, not independent contractors.  However, Washington law is not so clear on this issue.  A law review article proposed that “[w]hen an independent contractor presses a claim for wrongful termination based on a public policy violation, instead of basing its decision solely on employment status, the court needs to take a close look at the source of public policy offered by the plaintiff.”  Lisa J. Bernt, Wrongful Discharge of Independent Contractors: A Source-Derivative Approach to Deciding Who May Bring a Claim for Violation of Public Policy, 19 Yale L. & Pol’y Rev. 39, 40 (2000).  “When the underlying source of public policy was enacted to promote a public policy that is not dependent on an employment relationship between the parties, there is no reason to limit the public policy case to employees.”  Id.  For example, an independent contractor terminated for providing truthful testimony might have a wrongful termination claim based on the public policy supporting truthful testimony embodied in the statute criminalizing perjury.  Id.

Relying on this article, the Washington Court of Appeals “acknowledge[d] an analytical framework that would extend the tort [of wrongful discharge] to independent contractors who rely on a public policy that is not dependent on the employment relationship and who would otherwise not have a remedy against the alleged tortfeasor.”  Curevo, Inc. v. Choe, 2021 WL 1878002, at *4 (W.D. Wa. 2021) (construing Awana v. Port of Seattle, 121 Wn. App. 429, 436, 89 P.3d 291 (2004)).  Awana did not find the plaintiffs in that case had a wrongful termination claim because they were not independent contractors, and they had a remedy other than wrongful termination available to them.  121 Wn. App. at 436.  However, Awana left open the possibility that the claim might be viable for an independent contractor in another case.  Id.  A federal court also considered this issue, but merely assumed without deciding that a wrongful termination claim would be available to the independent contractor plaintiff in that case, because the plaintiff did not identify any public policy that the “employer” had violated in that case.  Curevo, Inc. v. Choe, 2021 WL 1878002, at *4-5 (W.D. Wa. 2021).  Thus, whether an independent contractor may have a claim for wrongful termination remains an open question under Washington law.