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Workplace Torts and Statutory Tunnel Vision

A fact that every attorney working in employment law knows, or should know, is that by and large most employment in the United States is "at will." What that means is, the employer can hire/not hire, terminate, or generally treat their employee's how they wish, so long as they are not breaking a law in the process. Of course, nearly all union contracts protect the employee from the "at will" doctrine. That is, generally, if you are a union member, your employer can only terminate you for cause. Most of the time there will be a general anti-retaliation/hostile work environment clause that also protects the worker. And, finally, government workers, all the way from federal workers, down to municipal employees have due process requirements, which basically means they have a property interest in their jobs, and must be given an administrative process before being terminated from their jobs.

Nothing in the previous paragraph is meant to imply that private sector non-union workers have no protections in the workplace. Employers, in addition to many other legal requirements, cannot discriminate on the basis of race, color, religion, national origin, color, or disability. Employers cannot retaliate against workers for whistle-blower activities, communicating with coworker about working conditions, and violations of break or overtime statutes.

Unfortunately, workers' rights lawyers get a version of statutory tunnel vision. Here in Washington State there are numerous workplace torts that, in effect, alter the "at will" doctrine. Two in particular have been extremely helpful to me in closing cases in dispute resolution that may have lingered through to trial if not alleged: (1) Wrongful Termination in Violation of Public Policy; and, (2) Intentional Infliction of Emotional Distress, aka, the tort of Outrage. Rather than regurgitate the elements, which can be found elsewhere, I want to point out the specific utility of each.

The Wrongful Termination in Violation of Public Policy tort, in many respects,

works contrary to the termination aspect of the "at will" doctrine, in that, this tort makes termination illegal if it can be linked to violation of any accepted public policy of the State of Washington, and allows the lawyer to claim compensatory tort damages for the plaintiff.

Similarly, the Intentional Infliction of Emotional Distress tort can be used as a makeshift anti-retaliation/anti-hostile work environment cause of action if the action of the workplace superior is severe enough, and again, allows the lawyer to claim compensatory tort damages for the plaintiff.

Don't fall victim to statutory tunnel vision when drafting your next complaint, remember the workplace torts.

Christopher J. Stockwell has been a Seattle employment attorney representing workers in a wide variety of employment claims and disputes, primarily discrimination and wrongful termination actions, since 2015.

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