Your former employee claims he was fired for blowing the whistle on alleged illegal activity. Your lawyers inform you that the deadline for filing a claim under the applicable whistleblower statutes has passed. You breathe a sigh of relief.

In three opinions issued last Thursday, the Washington Supreme Court told employers, not so fast! While such statutory claims may die upon their legislatively mandated deadlines, they may rise again as common law claims for wrongful discharge in violation of public policy.

Thirty years ago, Washington courts began recognizing claims for wrongful discharge in violation of public policy. Originally, this claim was meant to protect employees who are fired (1) for refusing to commit an illegal act, (2) for performing a public duty or obligation, such as jury duty, (3) for exercising a legal right or privilege, or (4) in retaliation for reporting employer misconduct (whistleblowing). To make a claim for wrongful discharge, employees must prove (among other things) that the termination discourages conduct that the legislature intends to encourage. This is known as the “jeopardy” element.

Prior to the Washington Supreme Court’s decisions last Thursday (Rose v. Anderson Hay & Grain Company, Rickman v. Premera Blue Cross, and Becker v. Community Health Systems), it was unclear whether this “jeopardy” element could be satisfied where the plaintiff had a statutory remedy for the alleged wrongful discharge. In certain cases, Washington courts reasoned that public policy is not in “jeopardy” where there is a statutory claim that protects the public policy. In other cases, Washington courts allowed such wrongful discharge cases to proceed, even in the face of a statutory remedy. 

The Washington Supreme Court has now made clear that an employee does not need to prove that there is no other adequate legal remedy in order to satisfy the jeopardy element of a wrongful discharge claim. As the Court explained, it did not want employers using statutes designed to protect employees as a shield from common law wrongful discharge claims. Only when a statute indicates that the legislature intended it to be a plaintiff’s sole remedy can an employer rely upon it as a defense to a wrongful discharge claim. 

What do these decisions mean for employers? Just because a former employee has missed the deadline for filing claims under whistleblower, anti-retaliation, or other statutes, it doesn’t mean you are out of the woods. Employees have three years in which to file a wrongful discharge claim, even if an employee’s statutory claims expire much sooner. Wrongful discharge claims are also often less well defined than their statutory counterparts, which makes assessing an employer’s risk more difficult. Stay tuned as courts tackle these common law incarnations of expired statutory claims.