Oregon employees have legal recourse for wrongful termination in very limited circumstances only. This article uses “wrongful termination” as laypeople tend to use the term – an employer’s unlawful termination of an employee’s employment. Note that “wrongful termination” has a specific meaning under Oregon law (an interstitial tort claim based on public policy).
Oregon follows the “at will” employment doctrine. “[T]he general rule is that an employer may discharge an employee at any time and for any reason, absent a contractual, statutory, or constitutional requirement to the contrary.” Cocchiara v. Lithia Motors, Inc., 353 Or 282, 290 (2013) quoting Washburn v. Columbia Forest Products, Inc., 340 Or 469, 475 (2006). Therefore, most wrongful termination cases in Oregon must be based on: (1) written or oral contracts, (2) a violation of specific statutes (e.g., medical leave, disability, and injured worker claims, crime victim rights claims, retaliation and whistleblower claims, civil rights claims based on age, sex, race, religion, etc.), (3) violation of public policy (e.g., reporting or opposing illegal activity, voicing serious safety concerns, attending jury duty, etc.), or (4) tort law or other theories recognized by the courts.
Legal Basis for Wrongful Termination Claims
An employee who asserts a wrongful termination claim will have the burden to prove their case with admissible evidence. Employees are typically required to prove that the stated illegal reason for the termination was a “but for” cause. See Oregon Uniform Civil Jury Instruction 59A.03 (“A substantial factor is one that made a difference in an employment decision; that is, the decision would not have been made without it. It need not be the only factor.”) Employers in wrongful termination cases almost always argue a “legitimate nondiscriminatory” motive for the termination, such as downsizing/reorganization, employee misconduct or poor performance, etc. The strength or weakness of any wrongful termination case depends on a variety of factors and every wrongful termination case is unique.
Breach of Contract: Employees who are terminated in violation of an enforceable written or oral employment contract may be able to assert a wrongful termination claim against a former employer. The employee will need to establish a written employment contract – violations of employee handbooks and policies alone will usually not suffice.
Statutory Protections: The law provides many employment-related protections for things like: (1) medical leave, (2) disability accommodations, (3) injured worker rights, (4) crime victim rights, (5) military and national guard service, (6) workplace health and safety, (7) whistleblowing, and (8) proper payment of wages. Employees fired for pursuing those rights may have legal claims against employers.
Protected Activity: Both Oregon and federal law protect employees who have engaged in “protected activity.” “Protected conduct” is defined by statute and includes, but is not limited to: reporting evidence of illegal conduct (evidence of internal policy violations or merely unethical conduct do not qualify), opposing unlawful employment practices, seeking or taking medical leave, requesting disability accommodations, making a wage claim, filing a workers’ compensation claim, reporting health and safety issues, and testifying in court proceedings.
Protected Classes: An employer cannot lawfully fire an individual because he or she is part of a “protected class.” Protected classes include race, color, national origin, gender, sexual preference, marital status, pregnancy, religion, age, disability, and crime victim status. An employee must be able to establish a causal link between membership in a protected class and the employer’s adverse action.
Tort Claims: Employees may also have rights under the common law or constitution. For example, in Bernard v. S.B., 270 Or.App. 710 (2015) the Oregon Court of Appeals considered an employee’s claims for intentional interference with economic relations, misrepresentation, and injunctive relief. While the court ultimately rejected the claims, the opinion in Bernard implies that the claims may be viable under different circumstances (e.g., where an employee is fired for voiding a statutorily voidable noncompete). See also Cocchiara v. Lithia Motors, Inc., 353 Or 282 (2013)(allowing employee’s claims of fraudulent misrepresentation and promissory estoppel claims).
The types of damages an employee will be able to recover will vary widely depending on the exact nature of the legal claims an employee brings. Wage loss can mount quickly in wrongful termination cases. Employees have a duty to minimize damages by searching for and securing replacement work as soon as possible. Employees may qualify for a broad range of remedies, including economic damages, noneconomic damages, punitive damages, attorney fees, and costs. Some claims however, only provide remedies for lost wages and do not provide for recovery of noneconomic damages (e.g., Oregon family leave act claims).
Employees who wish to assert a wrongful termination claim against an employer have a variety of options. The options available to a particular employee will depend on the particular case. Employees should act promptly because wrongful termination cases often involve important and often very short time deadlines.
Because of overlapping federal and state laws, complex workings of various government enforcement agencies, and the adversarial nature of wrongful termination claims, my usual recommendation is that employees attempt to seek legal counsel with any substantial claim. While there are a variety of self-help options for employees in employment cases (namely direct negotiations and administrative proceedings), it is worthwhile to discuss those options with an attorney early in the process.
The Equal Employment Opportunity Commission (EEOC) is the federal agency that investigates allegations of discrimination, harassment, and retaliation. The Bureau of Labor and Industries (BOLI) is Oregon’s EEOC equivalent and enforces our state anti-discrimination and anti-retaliation laws. The U.S. Department of Labor (DOL) also investigates certain employment-related cases. While the EEOC, BOLI, and DOL are useful in certain cases, all parties involved in government agency proceedings should be sure to understand the potential risks and drawbacks of proceeding that way.
A lawsuit is a formal, government-supervised process that parties can use to resolve their disputes. Litigated cases may proceed in state or federal courts depending on the details of the case. Lawsuits provide litigants with discovery rights, motions practice, and a set of rules to that govern the proceedings between the parties. Handled properly, litigation can be a productive and cost-effective process. Handled improperly, it can become a costly and wasteful mess.
In recent years, many employment-related agreements mandate that disputes be resolved by arbitration. Arbitration is a private court-like process mandated by private contract. Some contracts even provide for (or, in any event, employers are often willing to discuss) non-binding mediation for resolution of claims. Both parties should pay close attention to employment agreements and policies to ensure compliance with alternative dispute resolution procedures.