Wrongful Termination in Oregon

Oregon's wrongful termination laws are unnecessarily complex. It shouldn't take a law degree to determine whether there is legal recourse for being unfairly fired. However, given the increasingly complicated and ever-changing state of Oregon law, it is unfortunately more difficult than ever for most workers to understand their rights.

This article explains, in plain English, when employees might have viable termination-related claims against former employers in Oregon. The last section includes a long and hopefully useful list of Oregon authorities that provide grounds for wrongful termination claims.

*** Note: I am accepting very few wrongful termination cases these days. I really just wanted to share this information because I think it is important. However, if you want to consult about a wrongful termination case, please click here and review the section titled Consultations / Contacting Me. Thanks. ***

(I)     "Wrong" Is Not the Legal Test for Oregon Wrongful Termination Claims


The first thing to understand is that the term "wrongful termination" has both a common and legal meaning. When many people talk about wrongful termination, they mean firings that are intuitively wrong or unfair. The wrongness or unfairness of a termination can contribute to a wrongful termination case's overall strength [fn 1]. However, the legal test for whether a termination is legally actionable requires proof of more than just wrong or unfair. In other words, wrong and unfair firings are not necessarily "wrongful" under Oregon law. Few actually are.

To assert a successful wrongful termination claim, an employee must point to a specific law or policy that makes the firing unlawful. Oregon's body of wrongful termination law is an intertwined and conflicting mishmash of statutory, common law, and contract law principles. The relevant legal authority is spread across various statutory chapters, obscure administrative regulations, and decades of case law. Moreover, wrongful termination claims can implicate both state and federal law. The legal analysis can become very complex, very quickly.

(II)     What "Wrongful Termination" and "Wrongful Discharge" Mean Under Oregon Law

The legal definition for wrongful termination under Oregon law might be: "any firing from a job for which the law provides the employee a remedy against an employer." [fn 2] In Oregon, there are three primary categories in which the law provides remedies for a firing: (a) firings that violate a statute, (b) firings that are prohibited under Oregon common law (i.e., tort claims for wrongful discharge), and (c) firings that breach a contract.

The threshold question in any wrongful termination case is whether the employee was terminated [fn 3]. An employee who voluntarily quits a job will face a steep uphill battle when asserting a wrongful termination claim. While Oregon law protects employees from some on-the-job conditions (e.g., sexual harassment or unsafe working conditions), a "termination" is typically required for a wrongful termination claim. There are some cases where employees may bring "constructive discharge" cases. However, the legal standards for these claims are extremely high. In most cases, employees who quit will not be able to successfully bring wrongful termination claims.

Assuming the employee was terminated, he or she will then need to prove — usually by a preponderance of the evidence — that the termination violated Oregon law.

     (a)     Statutory claims

Statutory claims are probably the most common basis for wrongful termination claims in Oregon. Oregon Revised Statutes (ORS) Chapter 659A contains many discrimination and retaliation laws that employees commonly use to bring claims. There are other ORS sections that provide additional or similar protections contained in other statutory chapters (See Section (III)(a), infra.). A variety of federal statutory claims also provide protections for employees. This article focuses on Oregon law and therefore does not attempt to collect all of the federal statutes that protect employees.

There are many benefits to statutory wrongful termination claims. For one, statutory claims often require losing employers to pay a prevailing employee's attorneys' fees. This is very important because it allows employees to pursue claims even where they could not otherwise afford to pay an attorney. Statutory claims usually set forth the specific types of damages an employee may recover (e.g., economic damages, non-economic damages, reinstatement, injunctive relief). This can reduce some uncertainty and help resolve claims at an earlier stage. Finally, statutory claims provide objective standards and, in many cases, a well-developed body of case law based on prior interpretations of the statute. This can streamline legal theories and assist employees in presenting better-organized cases to juries or other fact finders.

     (b)     Common law tort claims


"Wrongful discharge" tort claims arise out of a series of Oregon appellate court opinions dating back to the 1970's. [fn 4] Unlike statutory claims, these tort claims are not specifically defined in any statute or regulation. Wrongful discharge claims typically address conduct that does not fit neatly under any particular statute but which, for some other reason, is socially undesirable.

Courts divide wrongful discharge tort claims into two categories. The first category arises when an employee is discharged for exercising a job-related right that reflects an important public policy. The second category addresses situations where a discharge is for fulfilling some important public duty. In either case, the important public policy or duty must be based on a specific law. Moreover, wrongful discharge tort claims are not available where statutory claims provide an adequate remedy.

The best way to understand wrongful discharge tort claims is to read the cases. I have included several examples below. There are many others which, unfortunately, require access to some kind of legal research tool (e.g., https://casetext.com).

     (c)     Contract claims

The final category of wrongful termination claims are those that arise under a contract. Employees in contract-based wrongful termination cases typically assert that an employer discharged the employee in violation of a specific term in the parties' contract. Employment contracts do not necessarily need to be in writing. However, it can be difficult to bring a wrongful termination claim based on an oral contract because it is typically more difficult for the employee to establish his or her burden of proof by a preponderance of the evidence.

(III)     A Long and Incomplete List of Potential Oregon Wrongful Termination Claims

Below is a list of statutory and common law examples of laws that may provide a basis to assert legal claims against an employer in connection with a firing. My goal is to provide enough examples in a digestible format in order to illustrate the breadth of legal protections available to employees. This list is not comprehensive. Among other things, it excludes a long list of claims arising in context-specific situations (e.g., Medicare, Sarbanes-Oxley, etc.) and many federal law claims that are beyond the scope of this article.

These examples are organized into the same three categories described above: (a) statutory claims, (b) common law claims, and (c) contract claims. Each item includes a very short and crude description of the claim.

        (a)     Statutory Claims

Under Oregon law, it is unlawful for an employer to fire an employee because of any of the following:

                  (1)   Discrimination based on "race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older, or because of the race, color, religion, sex, sexual orientation, national origin, marital status or age of any other person with whom the individual associates, or because of an individual’s juvenile record that has been expunged." ORS 659A.030(1)

                  (2)  The employee's filing of a complaint, testifying or assisting in any proceeding under ORS Chapter 659A or attempting to do so. ORS 659A.030(1)(f)

                  (3)   Certain religious accommodations. ORS 659A.033

                  (4)   On-the-job injuries / workers' compensation claims. ORS 659A.040 et seq.

                  (5)   Uniformed or military service. ORS 659A.082 et seq.

                  (6)   Disability or requests for accommodation for a disability. ORS 659A.103 et seq.

                  (7)    Family or medical leave. ORS 659A.150 et seq.

                  (8)    Leave to attend criminal proceeding. ORS 659A.190 et seq.

                  (9)   Protected whistleblowing. ORS 659A.199 et seq.

                  (10)   Discrimination related to employee housing. ORS 659A.250

                  (11)   Protections related to Domestic Violence, Harassment, Sexual Assault or Stalking. ORS 659A.270 et seq.

                  (12)   Protections related to prohibited employee testing, genetic testing, and medical examinations. ORS 659A.300- 659A.306.

                  (13)   Bone marrow donation. ORS 659A.312

                  (14)   Use of lawful tobacco products during nonworking hours. ORS 659A.315

                  (15)   Discrimination against academic degree in theology or religious occupations. ORS 659A.318

                  (16)   Discrimination related to credit history. ORS 659A.320

                  (17)   Certain issues related to social media account privacy. ORS 659A.330

                  (18)    Discrimination based on wage inquiry or wage complaint. ORS 659A.355

                  (19)   Prohibited salary history inquiries. ORS 659A.357

                  (20)   Prohibited criminal conviction inquiries. ORS 659A.360

                  (21)   Discrimination based on employment status. ORS 659A.550

                  (22)   Retaliation for filing administrative complaint. ORS 659A.865

                  (23)   Retaliation or discrimination due to certain wage-related inquiries or claims. ORS 652.035

                  (24)   Inquiries related to overtime pay or minimum wages. ORS 653.060.

                  (25)   Workplace safety and health reports. ORS 654.062(5)

                  (26)   Protected disclosures by nursing staff. ORS 441.181

        (b)     
Common law tort claims

Oregon courts have allowed common law wrongful discharge tort claims based the following:

                  (1)   Jury duty. Nees v. Hocks, 272 Or. 210 (1975)

                  (2)   Resisting a supervisor’s sexual harassment. Holien v. Sears, Roebuck & Co., 298 Or. 76 (1984)

                  (3)   Resisting sexual discrimination in the workplace. Goodlette v. LTM, Inc., 128 Or. App. 62 (1994)

                  (4)   Threatening to report patient danger or abuse. Hirsovescu v. Shangri-La Corp., 113 Or. App. 145 (1992); McQuary v. Bel Air Convalescent Home, Inc., 69 Or. App. 107 (1984)

                  (5)   Refusing to sign false and disparaging statement about co-worker. Delaney v. Taco Time International, Inc., 297 Or. 10 (1984)

                  (6)   Insisting that employer follow administrative and recordkeeping rules regarding drug inventory. Dalby v. Sisters of Providence, 125 Or. App. 149 (1993)

                  (7)   Refusing to disclose customer's confidential financial information. Banaitis v. Mitsubishi Bank, 129 Or. App. 371 (1994)

                  (8)   Refusing to install defective parts in aircraft in violation of FAA regulations. Anderson v. Evergreen Int’l Airlines, 131 Or. App. 726 (1994)

                  (9)   Refusing to make false statement on an insurance claim form. Borough v. D.G. Averill Trucking, 151 Or. App. 723 (1997)

                  (10)   Refusing to make a false allegation of sexual harassment against a coworker. Thorson v. State, 171 Or. App. 704 (2000)

                  (11)   Invoking rights in good faith under the Oregon Family Leave Act. Yeager v. Providence Health System Oregon, 195 Or. App. 134 (2004)

        (c)     Contract claims

Oregon employees many be able to established contract-based wrongful termination claims based the following:

                  (1)   Breach of Contract - Cases where a firing breaches a specific obligation set forth in the parties' agreement.

                  (2)   Breach of Duty of Good Faith and Fair Dealing - Cases where an employer fires an employee with the intention of improperly depriving the employee of a contractual right.

(IV)     Conclusion

As the above list of statutes and cases indicates, it has become far too difficult for employees to determine whether they have remedies in connection with a wrongful termination. This reality is even further complicated by the daunting process of bringing these claims in court, arbitration, or even in the context of settlement discussions (something this article does not address).

I hope this article has helped shine some light on Oregon wrongful termination law. If you have feedback, suggestions, or other input about this article, please email me at joel@worklaw.io. For any case-related inquiries, please fill out an intake form.


Footnotes

[1] - Cases involving egregious employer conduct can result in larger settlements or verdicts by appealing to a jury sense of right and wrong. Likewise, equities may tilt in an employee's favor in cases involving long-term employment, a well-liked employee, or any other heart-tugging facts that might compel a jury.

[2] - This is my own definition. There is no statutory definition of wrongful termination or wrongful discharge. Oregon courts have repeatedly defined the term "wrongful discharge" in the context of the specific tort claim of that name (see fn 3). However, there is not any broader definition of "wrongful termination" that includes all potential claims.

[3] - It is important to note that wrongful termination cases are typically only in connection with an employer-employee relationship. The rise of the "gig economy" has resulted in a  spike in businesses misidentifying workers as independent contractors. This is another hurdle that some fired workers will need to clear in order to successfully bring wrongful termination claims. This article does not address the topic of independent contractor versus employee status other than to note that independent contractor misclassification is an increasingly common issue.

[4] -  The earliest reported Oregon tort claims referred to "discharge" and thus most state court decisions since refer to the tort claim as "wrongful discharge." See e.g., Nees v. Hocks, 272 Or. 210, 218 (1975)("there can be circumstances in which an employer discharges an employee for such a socially undesirable motive that the employer must respond in damages for any injury done."); McManus v. Auchincloss, 271 Or. App. 765, 771 (2015), rev den, 358 Or. 145 (2015)(addressing a "common-law wrongful discharge claim"). Other courts have referred to the same claims as "wrongful termination."  See e.g., Rinallo v. Capsa Sols., LLC, 222 F. Supp. 3d 927 (D. Or. 2016)