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By the Firm’s Labor & Employment Department

For California employers, one of the most significant legal RISKS is a wrongful termination lawsuit.  For a sometimes bewildering variety of reasons, terminating an employee can wind up with you  as a defendant, either in court or negotiating a settlement with someone from the very  aggressive, skillful, and innovative plaintiff’s bar. There are a lot of situations in which letting  someone go can spell real legal trouble. Fortunately, the California Supreme Court recently  handed down a decision that both limits and clarifies one of them: the “violation of public policy”  claim. 

First, a little background. It is fairly settled employment law that an employer cannot punish an  employee for exercising a legal right. While California is a right-to-work state, in which employers  have considerable freedom in hiring, firing, discipline, and so on, you cannot, in general, fire  someone for obeying the law because you disagree, or it has consequences for you. This includes  situations in which employers attempt to retaliate against employees for: 

  1. Refusing to break the law;  
  2. Performing a legal obligation;  
  3. Exercising a legal right or privilege; or  
  4. Reporting a potential violation of an important law. 

As an example, an employee of a medical practice who notices what she thinks is insurance fraud  cannot be fired in retaliation for reporting what she’s seen to a government authority. Someone  who works for a railroad cannot be fired for reporting falsified safety records. You also cannot  fire or discipline someone for taking time away from work to vote, serve on a jury, and so on. 

There are some limitations to this. There has to be a connection between the termination and  the employee’s action. If an employee of a restaurant reports suspicion of serving alcohol to  minors to the state’s Department of Alcoholic Beverage Control, and is fired six years later, there  isn’t a connection, and thus, there isn’t a case. 

Another significant limitation is the “important law” concept. Since at least 1997, California  employees have a case for wrongful termination only if the legal policy at issue meets the  following criteria: 

  1. The policy is set forth in a statute or constitutional provision;
  2. The policy serves the interests of the public rather than that of the individual;
  3.  The policy was well-established at the time of the wrongful termination; and
  4. The policy is “substantial and fundamental.”

Over the past twenty-odd years, the plaintiff’s bar has successfully included a wide range of  statutes, policies, laws, and regulations in these cases. A few weeks ago, however, the California

Court of Appeal drew an important line in the case of Bruni v. The Edward Thomas Hospitality  Corporation (May 14, 2021) ___ Cal.App.5th ___ (“Bruni”), which held employees cannot sue for  wrongful termination based on the alleged violation of a local ordinance. 

The facts of Bruni are relatively simple. A restaurant server sued his former employer claiming,  among other things, violation of a local recall ordinance; and a wrongful failure to rehire claim  based on the alleged public policy expressed in the local ordinance. The key concept here is the  claim that a fundamental public policy was expressed in a local ordinance. As it turns out, no, it  wasn’t. 

The Court affirmed the trial court’s dismissal of the claim because “a municipal ordinance cannot  serve as the predicate for a [wrongful termination] tort claim.” The Court went on to hold that  wrongful discharge claims must be based on a fundamental public policy “expressed in a  constitutional or statutory provision.” 

Being a California employer is nobody’s idea of easy. However, with this decision, it just became  a little easier. Or at least, clearer. “Public policy” means “state law or constitutional provision,”  not a local ordinance.  

If you have questions, contact Gregory J. Norys, head of the firm’s Labor & Employment Department, at or (559) 248-4820.  

© Coleman & Horowitt, LLP, 2021 

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