Peterson v. Browning

832 P.2d 1280, 7 I.E.R. Cas. (BNA) 801, 187 Utah Adv. Rep. 3, 1992 Utah LEXIS 37, 1992 WL 101551

• Court: Utah Supreme Court
• Decided: May 13, 1992
• Docket: 900401
• Status: Published

Opinions

DURHAM, Justice:

In 1987, Vern Peterson filed a complaint in federal court against his former employer, Browning, and its personnel director, alleging, among other things, constructive termination in violation of Utah public policy. Peterson was a customs officer with Browning. In support of his public policy claim, Peterson alleges that he was terminated because of his refusal to falsify tax documents in violation of Utah and Missouri law and customs documents in violation of federal law.

This matter has been certified from the United States District Court for the District of Utah pursuant to rule 41 of the Utah Rules of Appellate Procedure. The question of law certified to this court for consideration is:

Does an action for termination of employment based upon the public policy exception to the employment-at-will doctrine for violation of or refusal to violate federal, other state, or Utah law sound in tort or contract?

On its face, the certified question appears to be singular, but in effect it has two parts: (1) Does the public policy exception to Utah’s employment-at-will doctrine encompass violations of federal law and the laws of other states as well as violations of Utah law? (2) Does that exception sound in tort or contract? ¹

THE PUBLIC POLICY EXCEPTION GENERALLY

The public policy exception to the employment-at-will doctrine restricts an employer’s right to terminate an employee for any reason. Burk v. K-Mart Cory., 770 P.2d 24, 28 (Okla.1989) (public policy exception attempts to balance competing interests of society, employee, and employer). Under the exception, the at-will doctrine will not insulate an employer from liability where an employee is fired in a manner or for a reason that contravenes a clear and substantial public policy. Utah recognizes the public policy exception to the at-will doctrine. Hodges v. Gibson Products Co., 811 P.2d 151, 165 (Utah 1991); Loose v. Nature-All Corp., 785 P.2d 1096, 1097 (Utah 1989).²

Actions falling within the public policy exception typically involve termination of employment for (1) refusing to commit an illegal or wrongful act, (2) performing a public , obligation, or (3) exercising a legal right or privilege. Jill S. Goldsmith, Note, Emyloyment-at-Will—Emyloyers May Not Discharge At-Will Emyloyees for Reasons that Violate Public Policy—Wagenseller v. Scottsdale Memorial Hosyital, 1986 Ariz.St.L.J. 161, 166-67. Here, Peterson alleges that he was terminated for refusing to commit an unlawful act. In a number of cases, other courts have found that the public policy exception applies in similar circumstances. See, e.g., Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330 (1980) (employee discharged for refusing to engage in illegal price fixing); Petermann v. International Bhd. of Teamsters, Chauffeurs, Warehousemen and Helyers of Am. Local 396, 174 Cal.App.2d 184, 344 P.2d 25 (1959) (employee terminated for refusing to commit perjury); Trombetta v. Detroit, Toledo & Ironton R.R., 81 Mich.App. 489, 265 N.W.2d 385 (1978) (employee discharged for declining to illegally manipulate state-mandated pollution sampling results); O’Sullivan v. Mallon, 160 N.J.Super. 416, 390 A.2d 149 (1978) (employee terminated for refusing to perform medical procedure for which she was not licensed); Harless v. First Nat’l Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978) (employee discharged for refusing to violate consumer protection law); Ostrofe v. H.S. Crocker Co., 740 F.2d 739 (9th Cir.1984), cert. dismissed, 469 U.S. 1200, 105 S.Ct. 1155, 84 L.Ed.2d 309 (1985) (employee discharged for refusing to participate in conspiracy to violate Sherman Antitrust Act).

How a court defines “public policy” is a determining factor in whether it will invoke the public policy exception. Wagenseller v. Scottsdale Memorial Hosp., 147 Ariz. 370, 377, 710 P.2d 1025, 1032 (1985); Note, Protecting Employees At Will Against Wrongful Discharge: The Public Policy Exception, 96 Harv.L.Rev.1931, 1947 (1983) [hereinafter Protecting Employees]. We acknowledge that the term “public policy” is open-ended, Hodges, 811 P.2d at 165, and varies from court to court and from case to case. See generally Protecting Employees at 1947-50 (discussing arbitrariness with which courts define public policy). We will not attempt here to define the full scope of the term “public policy” for purposes of the exception to the at-will doctrine. At this point, it is sufficient to say that declarations of public policy can be found in our statutes and constitutions. Hodges, 811 P.2d at 165-66; Berube v. Fashion Centre, Ltd., 771 P.2d 1033, 1043 (Utah 1989). This does not mean that all statements made in a statute are expressions of public policy. “[M]any statutes simply regulate conduct between private individuals, or impose requirements whose fulfillment does not implicate fundamental public policy concerns.” Foley v. Interactive Data Corp., 47 Cal.3d 654, 254 Cal.Rptr. 211, 217, 765 P.2d 373, 379 (1988). A number of courts have refused to recognize a cause of action unless the public policy allegedly violated is clear or substantial, see, e.g., Larsen v. Motor Supply Co., 117 Ariz. 507, 573 P.2d 907 (1977) (refusing to recognize public policy action where employees terminated for refusing to consent to take psychological stress evaluation test); Lampe v. Presbyterian Med. Ctr., 41 Colo.App. 465, 590 P.2d 513 (1978) (refusing to recognize public policy action based on broad, general language of nursing statute); Jones v. Keogh, 137 Vt. 562, 409 A.2d 581 (1979) (refusing to recognize action where employee was discharged over leave time dispute); Ward v. Frito-Lay, Inc., 95 Wis.2d 372, 290 N.W.2d 536 (1980) (refusing to recognize public policy violation where employee was fired because relationship with co-worker was causing dissension in work place), or clearly mandated, see Wagenseller, 147 Ariz. at 377, 710 P.2d at 1032; Parnar v. Americana Hotels, 65 Haw. 370, 652 P.2d 625, 631 (1982); Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 15-16, 421 N.E.2d 876, 878-79 (1981); Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859, 871 (Mo.Ct.App.1985); Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174, 180 (1974); Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081, 1089 (1984).

This court has indicated that it will narrowly construe the public policies on which a wrongful termination action may be based. Caldwell v. Ford, Bacon & Davis Utah, Inc., 777 P.2d 483, 485 (Utah 1989); Berube, 771 P.2d at 1043. It is not the purpose of the exception to eliminate employer discretion in discharging at-will employees, Hodges, 811 P.2d at 165, or to impose a requirement of “good cause” for the discharge of every employee. Accordingly, we hold that the public policy exception applies in this state when the statutory language expressing the public conscience is clear and when the affected interests of society are substantial. The identification of clear and substantial public policies will require case-by-case development.

SCOPE OF EXCEPTION: VIOLATIONS OF FEDERAL LAW AND LAWS OF OTHER STATES

We turn first to the question of whether the public policy exception as recognized in this state includes violations of federal law and the laws of other states in addition to violations of Utah law. In Adler v. American Standard Corp., 538 F.Supp. 572 (D.Md.1982), a discharged employee alleged, among other things, that he was terminated from his employment after he threatened to expose violations of federal tax laws. He claimed that the tendency of the firing was to prevent disclosure of illegalities in contravention of federal policy. In response, the employer argued that in an action raising a state’s public policy exception, an employee could not rely on federal law as the source of the public policy contravened. In concluding that federal law can be incorporated as the public policy of a state, the court stated:

It is in no way offensive to state sovereignty to engraft federal public policy within the civil law. If [the employer’s] arguments were to be adopted, this Court would accept the proposition that the [state], as a matter of public policy of its own, should not be concerned with serious violations of federal law.... This Court cannot agree that the [state] should close its eyes and, as a matter of policy, not be concerned with violations of federal law.

Id. at 578-79. A number of state courts likewise have recognized that certain federal laws may properly form the basis for a wrongful termination action under a state’s public policy exception. See Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330 (1980) (state action based on violation of federal price fixing laws); Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859 (Mo.Ct.App.1985) (state action based on violation of federal Food and Drug Administration regulations); Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985) (state action based on violation of federal water pollution laws).

We are not prepared to hold, however, that a violation of any federal or other state’s law automatically provides the basis for a wrongful termination action based on the Utah public policy exception. Many ancient, anachronistic, and unenforced criminal sanctions remain on the books of local, state, and national governments. Violations of such laws would not necessarily violate Utah public policy. To provide the basis for an action under the public policy exception, a violation of a state or federal law must contravene the clear and substantial public policy of the state of Utah. Although many state and federal laws will reflect Utah public policy, and may, in fact, provide a source of Utah public policy, a plaintiff must establish the connection between the law violated and the public policies of Utah. That has been done here.

In the present case, it is alleged that the employer discharged the employee because he would not falsify tax and customs documents. Such falsification involves serious misconduct and is in all likelihood a felony. See 18 U.S.C. § 542 (1988); Mo.Rev.Stat. § 150.260 (1986). “To hold that one’s continued employment could be made contingent upon his commission of a felonious act at the instance of his employer would be to encourage criminal conduct upon the part of both the employee and employer and would serve to contaminate the honest administration of public affairs.” Petermann, 344 P.2d at 27. Based on the information available to us, it appears that the Utah public policy at issue is both clear and substantial.

Persons who are terminated from their employment because they refuse to engage in illegal activities that implicate clear and substantial Utah public policy considerations should be protected regardless of whether the applicable law is that of Utah, the federal government, or another state.³ The effect on the employee of having to choose between keeping his job or following the law that governs him is the same regardless of the origin of the law. Accordingly, we hold that an attempt to coerce an employee to violate the state tax law and federal customs statute at issue contravenes the clear and substantial public policies of the state of Utah. Thus, a discharge resulting from an employee’s refusal to violate such laws is actionable under the public policy limitation.⁴

CONTRACT VS. TORT CHARACTERIZATION

The second issue before this court is whether the public policy exception sounds in tort or in contract. Characterizing a case as tort or contract orients the parties to the requisite elements of proof, permits anticipation of potential defenses, and defines the remedies available. See William L. Mauk, Wrongful Discharge: The Erosion of 100 Years of Employer Privilege, 21 Idaho L.Rev. 201, 208 (1985) [hereinafter Mauk]. Essentially, the standard of orientation in addressing this problem focuses on the duty which has allegedly been breached, asking whether that duty arises from a promise set forth in the contract or is one imposed by law, independent of contract. Id. at 209.

Of those courts recognizing the public policy exception to the at-will doctrine, the overwhelming majority adopt the tort theory.⁵ We agree with the majority and hold that the exception sounds in tort.⁶ An employer’s obligation to refrain from discharging an employee who refuses to commit a criminal act does not depend upon any express or implied promise arising from the employment contract. Instead, the tort cause of action arises out of the contractual relationship. See DCR Inc. v. Peak Alarm Co., 663 P.2d 433, 437 (Utah 1983) (burglar alarm company which breached duty of due care liable in tort even though relationship giving rise to duty originated in service contract between parties); see also Tameny, 164 Cal.Rptr. at 843-44, 610 P.2d at 1334; Malone v. University of Kansas Medical Ctr., 220 Kan. 371, 552 P.2d 885, 888 (Kan.1976); Burk v. K-Mart Corp., 770 P.2d 24, 28 (Okla.1989). The employer’s liability is based on “violation of a legal duty independently imposed as a result of what the defendant undertook to do with relation to the [employee’s] interests.” DCR Inc., 663 P.2d at 437 (quoting Carl S. Hawkins, Retaining Traditional Tort Liability in the Nonmedical Professions, 1981 B.Y.U.L.Rev. 33, 36).

Our holding that tort theory applies to the public policy exception is not inconsistent with our decision in Beck v. Farmers Insurance Exchange, 701 P.2d 795 (Utah 1985). In Beck, we held that a claim based on a breach of the implied covenant of good faith and fair dealing gives rise to a claim for breach of contract. Id. at 798. Tort damages in such a case can be obtained only upon a showing of independently actionable tortious conduct. See id. at 800 n. 3. Because the public policy exception is imposed by law, the employment agreement is involved only because it forms the basis of the relationship; the agreement is tangential to the reason for discharge. This is not the case with regard to the covenant of good faith and fair dealing. “The covenant of good faith is read into contracts in order to protect the express covenants or promises of the contract, not to protect some general public policy interest not directly tied to the contract’s purpose.” Foley v. Interactive Data Corp., 47 Cal.3d 654, 254 Cal.Rptr. 211, 232, 765 P.2d 373, 394 (1988). The very nature of the public policy exception, therefore, distinguishes it from the implied covenant of good faith and fair dealing discussed in Beck.

Further, our holding that the public policy exception sounds in tort is consistent with our adoption of the tort of intentional interference with economic relations in Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293 (Utah 1982). Under Leigh Furniture, to recover damages for that tort, “the plaintiff must prove (1) that the defendant intentionally interfered with the plaintiffs existing or potential economic relations, (2) for an improper purpose or by improper means, (3) causing injury to the plaintiff.” Id. at 304. The improper-purpose alternative of the second part of the test “is satisfied where the means used to interfere with a party’s economic relations are contrary to law, such as violations of statutes, regulations, or recognized common law rules. Such acts are illegal or tortious in themselves and hence are clearly ‘improper’ means of interference.” Id. at 308. The discharge of an employee because of his failure to violate a clear and substantial public policy is an “improper purpose” under this definition. The imposition of tort damages is therefore entirely appropriate and consistent. Accord W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 130, at 1029-30 (5th ed. 1984).

As discussed above, the duty at issue in actions for wrongful termination in violation of public policy does not arise out of the employment contract. It is imposed by law, and thus is properly conceptualized as a tort. Significant consequences flow from this conceptual approach, one of which is the type of damages available. When a contract theory is applied, compensation may be limited to economic losses such as back pay. Keeton § 130, at 1029 (citing Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834 (1983)). Moreover, concepts of foreseeability and mitigation apply. Brockmeyer, 335 N.W.2d at 841. In contrast, “[a] tort theory will permit the recovery to transcend these limits and may also serve to avoid limitations on recovery that may be imposed by the collective bargaining agreement or other contract.” Keeton § 130, at 1029. Most notably, a plaintiff may recover punitive damages under tort law.

In the case of the public policy exception, potential punitive damages will exert a valuable deterrent effect on employers who might otherwise subject their employees to a choice between violating the law or losing their jobs. The employment-at-will doctrine does not grant an employer the privilege of subjecting its employees to the risks of criminal liability. Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859, 872 (Mo.Ct.App.1985). The potential for the imposition of punitive damages under the public policy exception will, we believe, provide an incentive for employers to refrain from using their unique economic position to coerce employee conduct that contravenes clear and substantial public policies. Moreover, it will encourage employees to engage in lawful conduct and report violations of the law.

CONCLUSION

In response to the two-part question certified to this court, we hold that (1) the public policy exception to Utah’s employment-at-will doctrine encompasses violations of federal law and the laws of other states as well as violations of Utah law if those violations contravene the clear and substantial public policies of Utah, and (2) the exception sounds in tort.

STEWART, J., concurs.

1 . In its brief to this court, Browning raises two additional issues: (1) whether Peterson's public policy claim is preempted by the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 to 1461 (1985), and (2) whether there are sufficient facts to put the claim within the public policy exception. Peterson argues that these issues were not raised by the federal judge in his request for certification and that they are issues properly decided by the trial court, not by this court. We agree with Peterson. To address these questions without a request to do so would intrude upon the province of the federal court.

2 . The Utah Protection of Public Employees Act, Utah Code Ann. §§ 67-21-1 to -9 (1986 & Supp. 1991), protects public employees from discharge for reporting "a violation of a law, or rule promulgated under the law of this state, a political subdivision of this state, or any recognized entity of the United States,” id. § 67-21-3(1), or for participating “in an investigation, hearing, inquiry, or other form of administrative review held by [a] public body,” id. § 67-21-3(2). While the statute does not specifically limit the rights of private employers or address the employer who directs an employee to engage in unlawful conduct, it does reflect legislative approval of the basic proposition that it is against the public policy of the state for employers to discharge employees who seek to act within the law.

3 . We note that discerning the public policy implications of federal law or the law of another state may on occasion be difficult for Utah courts. Application of the "clear and substantial" criteria defined above should, however, minimize this problem.

4 . By including violations of "a law, or rule promulgated under the law of this state, a political subdivision of this state or any recognized entity of the United States," the Utah Protection of Public Employees Act, Utah Code Ann. § 67-21-3(1) (emphasis added), discussed supra note 2, reflects legislative approval of the basic proposition that the public policy of this state embraces the laws of other jurisdictions as well as Utah law.

5 . Only two states, Wisconsin and Arkansas, have adopted the contract theory. The Wisconsin court was influenced largely by the fact that the legislature in that state had prescribed contract damages for other instances of wrongful termination. Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834 (1983). Arkansas adopted the contract theory but recognized that in a proper case, the employee would have a cause of action for the tort of "outrage.” Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380, reh'g denied, 294 Ark. 239, 747 S.W.2d 579 (1988).

6 . The application of tort concepts in discharge and other employment contexts is not revolutionary. Tort theories have been applied, for example, to actions raised by aggrieved employees based on negligence, interference with contract, intentional infliction of emotional distress, invasion of privacy, and defamation. Mauk at 225. Similarly, employers have been found liable in tort for failing to furnish a safe work place or proper tools. W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 92, at 663 (5th ed. 1984) [hereinafter Keeton].