RYMER, Circuit Judge:
These appeals raise the familiar issue of when state law claims by employees covered by a collective bargaining agreement are preempted.1 They all arise out of the surreptitious videotaping of restrooms through two-way mirrors, an activity that is arguably criminal in California. Employees at the trucking terminal where this happened filed related actions seeking recovery from their employer, Consolidated Freightways Corporation of Delaware, for invasion of privacy (Cramer and Alfaro); emotional distress (Alfaro); and discharge in retaliation for their own conduct related to the surveillance (Hoffman). The district court held that all the claims in each action are preempted by Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185,2 because determining whether privacy rights have been violated re[1127]*1127quires an interpretation and application of the collective bargaining agreement. The employees contend otherwise, primarily for the reason that parties to a collective bargaining agreement cannot negotiate for considerations that violate criminal statutes. Following a long line of authority in this circuit, we agree with the district court in Cramer and Alfaro that adjudication of these civil claims based on privacy rights depends on the reasonableness of the employees’ expectations and this, in turn, depends on the extent to which they may have bargained away their privacy interests. Therefore these claims are preempted, whether or not the specific conduct at issue may also be subject to criminal prosecution. The same is true of Alfaro’s claims for emotional distress; the employer’s conduct is not outrageous just because a statutory prohibition may have been violated, rather it depends upon the relationship between the parties. Thus, we affirm both Cramer and Alfaro.
However, claims based upon retaliatory discharge in violation of public policy are different. Under California law, they turn on the employer’s motivation — not the employees’ expectations. Accordingly, we reverse Hoffman.
I
Consolidated Freightways is a large trucking company whose drivers and non-supervisory employees at the Mira Loma, California trucking terminal are subject to a collective bargaining agreement between Consolidated and the International Brotherhood of Teamsters, Local No. 63. Article 26, Section 2 of the Master Agreement provides that “[t]he Employer may not use video cameras to discipline or discharge an employee for reasons other than theft of property or dishonesty” and stipulates to a procedure to be followed if video tapes are used to support discipline or discharge. Other provisions acknowledge concern about substance abuse, prescribe drug testing procedures, and establish a process for grieving disputes arising under the agreement.
Evidently as part of an effort to detect and deter the use of drugs by its drivers, Consolidated installed video cameras and audio listening devices behind two-way mirrors in the restrooms at the Mira Loma terminal.3 Employees discovered the surveillance equipment in September 1997.
Local 63 filed a grievance on September 22, 1997, and on September 27 Lloyd Cramer, a truck driver employed at the Mira Loma terminal, brought a class action in the Superior Court for the State of California in Riverside County alleging invasion of privacy on behalf of all “individuals lawfully on the premises ... who had a reasonable expectation of privacy while using defendants’ restrooms.” Another suit was filed in state court by Guillermo Alfaro (joined by 281 others), seeking damages for invasion of privacy as well as for infliction of emotional distress, and an injunction to stop Consolidated’s use of the allegedly illegal devices. Consolidated removed both actions to federal district court, asserting that the claims fall within the preemptive reach of § 301.
Consolidated moved in both actions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure; conversely, Alfa-ro filed a motion to remand for lack of federal jurisdiction, in which Cramer joined. Various motions were filed with respect to class certification in Cramer, but the district court considered the remand and dismissal motions first. The court denied the motions to remand; granted Consolidated’s motion to dismiss in Cramer and denied the request for certification as moot; and granted the motion to dismiss in Alfaro as to the 273 employees and remanded the claims of nine non-employees to state court.
Meanwhile, Theresa Hoffman and Ma-sao Shobe also filed an action in state court. Hoffman claimed that while at work, she witnessed installation of some of the surveillance devices and that she was [1128]*1128fired as part of a cover-up. As a “casual employee” under the collective bargaining agreement, Shobe regularly worked, short stints for Consolidated at the Mira Loma terminal. Although he was not working at the time, he joined as a party in the Alfaro action. Thereafter, Shobe applied to be rehired but alleges that he was rejected because of his participation in the Alfaro suit. Both claim that installation of the secret cameras violated California Penal Code §§ 632, 635, 647k and 653n as well as their constitutional rights of privacy under Article 1, Section 1 of the California Constitution, and that Consolidated’s job actions were taken to conceal the existence of crimes in Hoffman’s case, and in Shobe’s, to punish him for filing a lawsuit to protect and enforce his constitutional privacy rights. Consolidated removed and moved to dismiss on grounds of preemption; Hoffman and Shobe in turn sought a remand. The district court found both claims preempted, and dismissed the action.
All parties have timely appealed.
II
Invasion of Privacy
(Hoffman and Alfaro)
Cramer4 and Alfaro argue that the LMRA cannot preempt a lawsuit by union employees who claim they are victims of illegal surveillance and eavesdropping activities by their employers. They point out that the LMRA only preempts state lawsuits which are “substantially dependent” on a CBA, see Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987), and that employees covered by a collective bargaining agreement may assert legal rights “independent” of the agreement. Id. at 396, 107 S.Ct. 2425. “Independent” means that “resolution of the state-law claim does not require construing the collective bargaining agreement.” See Lingle v. Norge Division of Magic Chef, 486 U.S. 399, 407, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). Specifically relying on Allis-Chalmers, and Miller v. AT & T Network Sys., 850 F.2d 543 (9th Cir.1988), Cramer and Alfaro submit that their state law claims are independent of the CBA because the collective bargaining agreement cannot, as a matter of law, authorize conduct that is illegal under state law. In their view, Consolidated’s conduct was illegal and prohibited by at least four sections of the California Penal Code: § 653n,5 which makes it a misdemeanor to install a two-way mirror in a bathroom; § 647(k),6 which criminalizes viewing the interior of a bathroom; § 632,7 which makes it illegal to eavesdrop [1129]*1129by means of electronic recording devices; and § 635,8 which prohibits the possession of eavesdropping devices. As there is no possible interpretation of the CBA that would allow the criminal surveillance at issue in this case, Cramer and Alfaro maintain there will be no need to interpret the collective bargaining agreement in the course of the litigation.
Consolidated counters that no matter how the employees’ privacy claim is cast, it cannot be determined without interpretation and application of the collective bargaining agreement, which specifically addresses the use of video surveillance and drug interdiction, because the employees allege (and must prove) that they reasonably expected to be free from video surveillance and that the surveillance undertaken unreasonably intruded on their reasonable expectations of privacy. Consolidated further contends that § 301 preemption does not turn on whether a privacy claim is based upon an alleged violation of a criminal statute, a constitutional provision, or some other source of substantive rights under state law. but instead, depends upon whether the state claim can be resolved without consideration of the collective bargaining agreement. Finally, it submits, the general proposition that parties to a collective bargaining agreement cannot agree to something illegal under state law is largely irrelevant in this case, where the critical issue is whether Consolidated’s alleged violation invaded the employees’ reasonable expectations of privacy.
We do not write on a clean slate in this area. It is by now well-settled that Section 301 preempts state law claims which are founded on rights created by a collective bargaining agreement, or which are “substantially dependent on analysis of a collective bargaining agreement.” Stikes v. Chevron U.S.A., Inc., 914 F.2d 1265, 1268 (9th Cir.1990). More particularly, we have held in a long line of cases that employee suits for violation of privacy interests arising under California law are inextricably intertwined with the collective bargaining agreement. “This is because a violation of California’s constitutional right to privacy requires both that an individual have a ‘personal and objectively reasonable expectation of privacy’ and that the expectation ‘has been infringed by an unreasonable ... intrusion.’ ” Id. at 1269 (quoting Alarcon v. Murphy, 201 Cal.App.3d 1, 248 Cal.Rptr. 26, 29 (1988)). Thus, in Stikes, we confronted a union employee’s claim for violation of his right to privacy on account of Chevron’s policy requiring employees to submit to random searches of their persons and property. We concluded that the “district court could not ascertain Stikes’ expectations of privacy at the workplace without considering the conditions of his employment enumerated in the collective bargaining agreement.” Id. at 1269. Before that, in Laws v. Calmat, 852 F.2d 430, 431-32 (9th Cir.1988), and Utility Workers of America v. Southern California Edison Co., 852 F.2d 1083, 1085-87 (9th Cir.1988), we held that state law privacy challenges to a union employer’s drug and alcohol testing programs are substantially dependent upon the collective bargaining agreement, whether or not specifically discussed in the agreement, because a drug or alcohol program is a working condition and the conditions of a union employee’s employment are governed by the collective bargaining agreement. Most recently, we revisited whether claims for invasion of privacy rights arising out of an employer’s drug testing program were preempted in Schlader-Jones v. General Telephone of California, 936 F.2d 435 (9th Cir.1991). Again holding they were, we reasoned that a collective bargaining agreement governs the working conditions of employment, a testing program is a working condition [1130]*1130whether or not it is specifically discussed, and “[w]hen a working condition such as drug testing is subject to bargaining, and the employee’s claim is rooted in the expectations of the parties, determining liability will necessarily involve contract interpretation and the claim will be preempted.” Id. at 441.
Cramer and Alfaro contend that we need not follow this line of authority because restroom surveillance is different from drug testing in that drug testing is not illegal in California whereas it is illegal to install a two-way mirror in a bathroom. See CaLPenal Code § 653n. We cannot agree. While the level of culpability and the consequences may be different, the claim for relief is not; here as in the random search and drug-testing cases, the employees complain of an invasion of privacy contrary to their rights under the California Constitution. As we recognized in Stikes, under California law plaintiffs asserting an invasion of privacy claim must show that they had a personal and objectively reasonable expectation of privacy that was infringed by an unreasonable intrusion. Stikes, 914 F.2d at 1269. This depends on the “deal struck between labor and management.” Schlacter-Jones, 936 F.2d at 441. The reason is that consent is normally a defense to a privacy action.9 As the California Supreme Court articulated the point in Hill v. National Collegiate Athletic Ass’n, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 849, 865 P.2d 633 (1994):
[T]he plaintiff in an invasion of privacy case must have conducted himself or herself in a manner consistent with an actual expectation of privacy, i.e., he or she must not have manifested by his or her conduct a voluntary consent to the invasive actions of defendant. If voluntary consent is present, a defendant’s conduct will rarely be deemed “highly offensive to a reasonable person” so as to justify tort liability.
Further,
[i]n determining the “ ‘offensiveness’ ” of an invasion of a privacy interest, common law courts consider, among other things: “the degree of the intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder’s motives and objectives, the. setting into which he intrudes, and the expectations of those whose privacy is invaded.”
Id. at 850, 865 P.2d 633 (quoting Miller v. National Broadcasting Co., 187 Cal.App.3d 1463,. 1483-84, 232 Cal.Rptr. 668, 679 (1986)). Thus, in this case as in the case of employer search or drug testing programs that we have previously considered, the reasonableness of the employees’ expectations of privacy will depend upon the level of management oversight allowed in the collective bargaining agreement and the extent to which this particular surveillance exceeds what Cramer and Alfaro could reasonably expect.10
[1131]*1131They argue that this cannot be so for several reasons directly related to the illegality of the surveillance activities. First, Cramer and Alfaro emphasize the Supreme Court’s statement in Allis-Chalmers that “ § 301 does not grant the parties to a collective-bargaining agreement the ability to contract for what is illegal under state law.” Allis-Chalmers, 471 U.S. at 212,105 S.Ct. 1904. They maintain that criminal conduct is, by definition, outrageous, see Galvez v. Kuhn, 933 F.2d 773, 780 (9th Cir.1991), and cannot be a condition that it is possible for a collective bargaining agreement to condone. While the argument has considerable force, it ultimately fails to save their claim because the civil right to privacy, regardless of source, can be waived for the reasons we have already explained. As the Court went on to explain the difference between obligations that are “independent” of a labor contract from those that are not:
In extending the preemptive effect of § 301 beyond suits for breach of contract, it would be inconsistent with congressional intent under that section to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.
Therefore, state-law rights and obligations that do not exist independently of private agreements, and that as a result can be waived or altered by agreement of private parties, are preempted by those agreements.
Allis-Chalmers, 471 U.S. at 212-13, 105 S.Ct. 1904 (footnote omitted). This is precisely the situation here, as privacy rights can be altered or waived under California law and must be considered in context. See Hill, 26 Cal.Rptr.2d at 850, 865 P.2d 633. No one suggests that the subject of surveillance is an improper subject for collective bargaining. Cf. Utility Workers, 852 F.2d at 1086 (noting that drug testing is proper subject for collective bargaining and does not implicate the sort of “nonnegotiable state-law rights” that Allis-Chal-mers indicates might preclude preemption); Schlacter-Jones, 936 F.2d at 441 (noting that “the question is not solely whether a state law claim is ‘nonnegotiable’; it is whether it is ‘independent ’ of the collective bargaining agreement”). Thus, the extent to which the collective bargaining agreement and the relationship between the parties in the workplace allow for surveillance will inevitably inform the decision about how reasonable the employees’ expectations were that it would not occur as it did.
Galvez represents quite a different situation. There, the employee sued for damages for an assault. Being assaulted by a supervisor is not only outrageous, it is non-waivable. Further, Galvez’s claim could be resolved without interpreting the collective bargaining agreement because liability for the assault turned entirely on the employer’s intent. Unlike these cases, the outcome in Galvez in no way depended on the i*easonableness of the employee’s expectations.
The same is true of other cases upon which Cramer and Alfaro rely. Miller, Jimeno v. Mobil Oil Corp., 66 F.3d 1514 (9th Cir.1995), Ramirez v. Fox Television Station, Inc., 998 F.2d 743 (9th Cir.1993), and Chmiel v. Beverly Wilshire Hotel Co., 873 F.2d 1283 (9th Cir.1989), all involve claims by a union employee arising out of alleged discrimination by the employer contrary to state law. In this context we have held that when a state construes its discrimination statutes to rely on standards of discriminatory discharge that are independent of any standard of reasonable treatment set forth in the collective bargaining agreement, then termination of employment allegedly in violation of those statutory standards can be resolved under those standards without reference to the collective bargaining agreement. In other words, & Miller-type case only raises a factual dispute under an established state standard; such cases can be fully determined by deciding if the employer intended to discriminate. Unlike these cases, the California “standard” for privacy assumes that it can be altered by agreement. Because it can be, it plainly is not a “non[1132]*1132negotiable, independent state-law right” under Allis-Chalmers. As we recognized in Miller, “[t]he concept ‘nonnegotiable’ is clear. A right is nonnegotiable if the state law does not permit it to be waived, alienated, or altered by private agreement.” Miller, 850 F.2d at 546. Given the negotiable right at issue, here, there is no basis for concluding that a different analysis applies to a privacy claim founded on arguably illegal, by contrast with legal but also invasive, activities.
Next, Cramer and Alfaro submit that California Penal Code §§ 653n and 647(k) flatly ban surveillance through two-way mirrors in bathrooms regardless of whether there is an expectation of privacy. Whether or not this is so for purposes of criminal prosecution, there is no question that the civil tort on which they proceed in this case does turn on the existence of a reasonable expectation of privacy. Alternatively, they contend that California case law interpreting § 653n is clear that the expectation of privacy that people have in a restroom is reasonable as a matter of law. They point to People v. Metcalf, 22 Cal.App.3d 20, 98 Cal.Rptr. 925, 927 (1971), in which the court held that “the enactment of [Penal Code] section 653n enunciates a public policy against clandestine observation of public restrooms and renders it reasonable for users thereof to expect that their privacy will not be surreptitiously violated,” and to People v. Triggs, 8 Cal.3d 884, 106 Cal.Rptr. 408, 414, 506 P.2d 232 (1973), overruled on other grounds People v. Lilienthal, 22 Cal.3d 891, 150 Cal.Rptr. 910, 912 n. 4, 587 P.2d 706 (1978), and Young v. Superior Court of Tulare County, 57 Cal.App.3d 883, 129 Cal.Rptr. 422, 425 (1976), which also indicate that the expectation of privacy a person has when he enters a restroom is reasonable. However, these are Fourth Amendment cases in which a person accused of criminal conduct occurring in a public restroom has challenged the use of evidence obtained through surreptitious surveillance on the footing that it was an unreasonable search of an area in which he had a reasonable expectation of privacy. See also In re Deborah C., 30 Cal.3d 125, 177 Cal.Rptr. 852, 858, 635 P.2d 446 (1981) (prosecution for theft based on fitting room surveillance). We are aware of no California authority interpreting § 653n to apply to employees who are parties to a collective bargaining agreement, or applying the constitutional right of privacy in the context of surveillance other than in Hill. Hill expressly conditions the right to privacy on consent and circumstances. Accordingly, while § 653n undoubtedly accords with a person’s reasonable expectations of privacy in general — and probably with the expectations of Consolidated’s employees — we cannot say that it absolutely does without examining the extent to which surveillance, which the collective bargaining agreement assumes will occur, is conducted at the terminal with the employees’ knowledge and consent.
Additionally, Cramer and Alfaro argue that their actions are not preempted under the test for preemption we adopted in Miller and applied in Jimeno. In deciding whether Miller’s discrimination claim was preempted we considered
(1) whether the CBA contains provisions that govern the actions giving rise to a state claim, and if so, (2) whether the state has articulated a standard sufficiently clear that the state claim can be evaluated without considering the overlapping provisions of the CBA, and (3) whether the state has shown an intent not to allow its prohibition to be altered or removed by private contract.
Miller, 850 F.2d at 548 (footnote omitted). For reasons we have already discussed, none of these factors cuts in favor of non-preemption of a privacy claim.
Finally, Cramer and Alfaro suggest that we should not hold their claims preempted because to do so would give employers license to violate the criminal laws without recourse. We fail to see how, as employers can be criminally prosecuted for violations of § 653n, and will surely lose in the grievance process itself if, as the employees here contend, surveillance has in fact [1133]*1133been conducted without authority. Our decision in no way sanctions what Consolidated did; it merely prescribes the forum and the form in which the dispute must go forward. Accordingly, the privacy claims are preempted, and were properly dismissed.
Ill
Emotional Distress
(Alfaro)
Alfaro asserts additional causes of action for the intentional and negligent infliction of emotional distress. In effect these are “parasite” claims that track the principal claim for invasion of privacy. We therefore address them summarily, as for essentially the same reasons, they, too, are preempted.
To demonstrate intentional infliction of emotional distress, a plaintiff must show that the conduct was “extreme and outrageous,” Sabow v. United States, 93 F.3d 1445, 1454 (9th Cir.1996) (applying California law), “ ‘exceeding] all bounds of that usually tolerated in civilized society.’ ” Id. at 1455 (quoting Davidson v. Westminster, 32 Cal.3d 197, 185 Cal.Rptr. 252, 259, 649 P.2d 894 (1982)). Whether the employees consented to surveillance affects the extent to which the surveillance about which Alfaro complains is “outrageous.” See Saridakis v. United Airlines, 166 F.3d 1272, 1278 (9th Cir.1999) (under California law “determining whether an employer’s conduct is outrageous requires an interpretation of the terms of the CBA ... ”); see also Miller, 850 F.2d at 551 (construing Oregon law, but noting that outra-geousness could depend upon the collective bargaining agreement and that “we cannot assume that the employer’s behavior was outrageous for purposes of an emotional distress claim just because the employer may have violated a statutory prohibition against discrimination”).
The tort of negligent infliction of emotional distress is simply a negligence claim alleging that the defendant breached a duty to protect the plaintiffs mental well-being. See Potter v. Firestone Tire & Rubber Co. 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 562, 863 P.2d 795 (1993) (“[T]here is no independent tort of negligent infliction of emotional distress”); Burgess v. Superior Court, 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 618, 831 P.2d 1197 (1992) (“We have repeatedly recognized the negligent causing of emotional distress is not an independent tort, but the tort of negligence.”) (internal quotations and alterations omitted). For the same reason that resort to the collective bargaining agreement is required to adjudicate Alfa-ro’s claim for intentional infliction of emotional distress, it is necessary to resolve the negligence claim: the extent to which the employees consented to surveillance is a factor in determining whether Consolidated had a duty not to be surveillant in the restrooms. Alfaro argues that we have repeatedly held that outrageous and illegal conduct is outside the terms of a collective bargaining agreement, citing Galvez as an example. However, as we have discussed, an assault such as happened in Galvez is neither more nor less outrageous depending upon the conditions governing conduct in the workplace, whereas the outrageousness of the conduct here does depend on the degree of surveillance contemplated through the collective bargaining agreement.
Accordingly, Alfaro’s claims for emotional distress are preempted.11
IV
Discharge in Violation of Public Policy
(Hoffman)
The gist of Hoffman’s claim is that she was preemptively fired in an at[1134]*1134tempt to keep her from reporting ifiegal surveillance activity to law enforcement officials. Her theory is that whistleblow-ci's are protected from retaliation by statute in California, see Cal. Labor Code § 1102.5(b),12 and that California courts have held that terminations in violation of § 1102.5 give rise to a cause of action for wrongful termination in violation of public policy. See, e.g., Garcia v. Rockwell Int'l, 187 Cal.App.3d 1556, 232 Cal.Rptr. 490 (1986) (public policy forbids retaliation by employer against employee who disclosed information regarding employer's violation of law to government agency), abrogated on other grounds, Gantt v. Sentry Ins., 1 Cal.4th 1083, 4 Cal.Rptr.2d 874, 824 P.2d 680 (1992). She points out that the conduct she witnessed is criminalized by Cal.Penal Code §~ 653n, 647(k), 632, and 635, and that privacy is explicitly protected in the California Constitution. Shobe rests his claim that he was not rehired in retaliation for being a party in the Alfaro litigation on the right to bring a lawsuit alleging violation of his privacy rights. Both argue that it will be unnecessary to interpret the collective bargaining agreement because the issue of whether Consolidated fired Hoffman to cover-up its criminal acts, and refused to rehir~ Shobe because of his legal action, is strictly a factual inquiry under state law.
Consolidated's position is that because an essential element of all "public policy" wrongful termination claims is that the ~mployer's conduct must have violated some fundamental public policy, and the violation upon which Hoffman and Shobe rely is the alleged invasion of their privacy rights, they must establish that Consolidated in fact violated the statutory or constitutional provisions protectiiig the right to privacy. This Consolidated believes they cannot do without interpreting the collective bargaining agreement. If this were the issue-that is, if the claim could be made out only if the employees first prove that Consolidated in fact violated their privacy rights-then this case would be exactly like Cramer and Alfaro. However, the focus here is different: "[A]n employee need not prove an actual violation of law; it suffices if the employer fired him for reporting his `reasonably based suspicions' of illegal activity." Green v. Ralee Engineering Co., 19 Cal.4th 66, 78 Cal.Rptr.2d 16, 29, 960 P.2d 1046 (1998). Put another way, Hoffman and Shobe do not need to show that their own privacy rights were actually violated (which would depend upon the reasonableness of their expectations), rather that their claim for retaliatory wrongful termination is predicated on important public policy-which they allege is privacy.
Under California law, "[a]part from the terms of an express or implied employment contract, an employer has no right to terminate employment for a reason that contravenes fundamental public policy as expressed in a constitutional or statutory provision." Twr,ier v. Anheuser-Busch, Inc., 7 Cal.4th 1238, 32 Cal. Rptr.2d 223, 231, 876 P.2d 1022 (1994). To state a cause of action for wrongful discharge in violation of fundamental public policy, an employee must prove that his dismissal violated a policy that is fundamental, beneficial for the public, and embodied in statute or constitutional provision. "Tort claims for wrongful discharge typically arise when an employer retaliates against an employee for `(1) refusing to violate a statute ... [,] (2) performing a statutory obligation . .. 1,] (3) exercising a statutory right or privilege ... [, or] (4) reporting an alleged violation of a statute of public importance." Id. at 234, 876 P.2d 1022 (quoting Gantt v. Sentry Ins., 1 Cal.4th 1083, 4 Cal.Rptr.2d 874, 878, 824 P.2d 680 (1992)). Thus the cause of action turns on why the employer took the action [1135]*1135it did, and the existence of a source of public policy to which the employee’s claim is “tethered.” Gantt, 4 Cal.Rptr.2d at 881, 824 P.2d 680.
Consolidated argues that public policy wrongful discharge claims must be based upon a fundamental policy that is not subject to revision through agreement of private parties (as privacy rights are), see Green, 78 Cal.Rptr.2d at 21, 960 P.2d 1046 (discussing genesis of requirement that Tameny13 claim implicate public policy); and that there can be no viable public policy claim based upon privacy rights because they may be altered by agreement. However, it seems to us that both points have to do with whether a viable cause of action is stated under California law, which is an issue that the federal courts cannot reach without jurisdiction.14 The only question for us to decide is whether the collective bargaining agreement will have to be construed in the course of litigating this action. We think not, for if Consolidated is correct that a public policy which can be altered by agreement is not the kind of public policy upon which a wrongful discharge claim may be based, a state court can make that determination with respect to California’s policy on privacy simply by looking to state law. Thus, Consolidated’s reliance on Stikes, Laws, Utility Workers, and Schlacter-Jones, each of which involves a job action taken as a result of a search that the employee later contends invaded his privacy rights, is misplaced. Instead, this case is closer to Lingle, where an employee covered under a collective bargaining agreement brought an action for retaliatory discharge for filing a workers’ compensation claim, and the Court held that the state claims were not preempted because their resolution turns on the employer’s motivation in discharging the employee — not on interpretation of the agreement. Lingle, 486 U.S. at 407, 108 S.Ct. 1877.
In sum, whereas the claims for invasion of privacy in Cramer and Alfaro rest on the expectations of the parties, the Hoffman claims for retaliatory wrongful discharge rest on Consolidated’s motivation in firing Hoffman and not rehiring Shobe. See Schlacter-Jones, 936 F.2d at 441 (contrasting a Lingle claim that centers on the motivation of the employer with a privacy claim which rests “primarily on the expectations of the parties and. the powers” of the employer). This can be determined without reference to the collective bargaining agreement. Accordingly, neither Hoffman’s nor Shobe’s claim is preempted. We therefore reverse dismissal and remand with instructions for Hoffman to be remanded to the Superior Court for Riverside County.
AFFIRMED as to Cramer and Alfaro; REVERSED AND REMANDED as to Hoffman.