Recovery of Damages for Wrongful Discharge, 2nd edition

(supplemented February 2008)

Chapter 1:
The Public Policy Exception

I. Introduction

A. General Acceptance of Doctrine
B. Obstacles to Stating a Cause of Action

1. Sufficiency of the Public Policy Basis
2. Existence of Statutory Remedies

C. State-by-State Summary of Case Law

A. Origins of Public Policy Exception: Petermann v. International Bhd. of Teamsters
B. Other Cases Holding Cause of Action Stated
C. Public Policy Exception Recognized But Mandate of Public Policy Not Sufficiently Implicated
D. Recognition of Public Policy Exception Refused

A. Discharge for Filing Workers' Compensation

1. The Frampton Decision and Indiana Law
2. The Sventko Decision and Michigan Law
3. The Kelsay Decision and Illinois Law
4. Other Cases Recognizing Cause of Action
5. Recognition of Public Policy Exception Refused
6. Frampton Distinguished on Its Facts
7. Statutory Remedies Held Exclusive
8. Existence of Explicit Statutory Provision for Civil Cause of Action

B. Discharge for Exercise of Other Rights

1. Filing Suit Against Employers
2. Union and Political Activities
3. Protesting Unsafe Working Conditions
4. Refusing To Take Lie Detector Test
5. Miscellaneous Other Rights

A. Performing Jury Duty
B. Performing Other Statutory Duties

A. Cases Holding Cause of Action Stated
B. Cases Holding Public Policy Not Sufficiently Implicated
C. Recognition of Public Policy Exception Refused

A. Age, Sex, or Race Discrimination
B. Discharge To Prevent Vesting of Pension or Other Benefits
C. Discharge for Illness
D. Miscellaneous Causes

A. In General
B. Measures of Damages

Back to top

Chapter 2:
Bad Faith

I. Introduction: The Contract-Tort Debate

A. Evolution of California Law Prior to Foley v. Interactive Data Corp.
B. Foley v. Interactive Data Corp.

A. The "Massachusetts Doctrine": Discharge To Avoid Paying Employee Already-Earned Compensation or Commission
B. Requirement of Public Policy Violation To Establish Bad Faith

A. Jurisdictions Recognizing Bad Faith Tort Cause of Action
B. Jurisdictions Recognizing Bad Faith Contract Cause of Action
C. Jurisdictions Recognizing Limited "Massachusetts Version" of Employer Bad Faith Doctrine
D. Jurisdictions Requiring Public Policy Violation To Establish Employer Bad Faith
E. Jurisdictions Declining To Recognize Any Bad Faith Cause of Action in At-Will Employment Context
F. Unsettled Jurisdictions

A. In General
B. Factors Tending To Establish Bad Faith

1. Employer's Intention To Avoid Payment of Compensation
2. Employer's Ratification of Employee's Conduct
3. Pattern of Abuse by Employer
4. Manner of Discharge
5. Sexual Harassment
6. Length of Service
7. Employee's Age
8. Employee's Refusal of Perform Unlawful Acts
9. Employee's Illness
10. Employer's Noncompliance with Own Personnel Procedures

C. Factors Suggesting Absence of Bad Faith

1. Employee's Incompetence
2. Employee's Participation in Unethical Practices
3. Employer's Refusal To Take Test or Answer Questions
4. Employee's Relationship with Fellow Employee
5. Employee's Lawsuit Against Employer
6. Brevity of Employee's Tenure
7. Abolishment of Employee's Position

VI. Defenses

A. Defenses Based on Terms of Contract

1. Limitations Period
2. Grievance Procedure
3. Provisions for Forfeiture of Compensation on Termination

B. Defenses Based on Preemption by Statute

1. ERISA
2. ADEA

C. Improper Parties

1. Fellow Employee as Improper Defendant
2. Spouse as Improper Plaintiff

D. Other Defenses

1. Waiver by Continued Employment
2. Voluntary Resignation
3. Availability of Alternative Remedy
4. Statute of Frauds
5. Failure To File Timely Claim Under State Tort Claims Act

Back to top

Chapter 3:
Implied Contract Rights

I. Introduction

II. Agreement

A. Agreement Arising From Personnel Manual or Policies Reduced to Writing

1. In General
2. Leading Cases
3. Factors Affecting Enforceability of Agreement

B. Agreement Arising From Other Sources

1. Agreement for Permanent or Lifetime Employment
2. Sources of Agreement for Definite Term
3. Agreement Continuing Until Occurrence of Contingency
4. Agreement for Reasonable Time
5. Agreement Permitting Termination on Employer's Objective Dissatisfaction
6. Agreement Permitting Termination on Employer's Subjective Dissatisfaction

C. Other Issues

1. Employee's Assent To Offer of Employment
2. Recognition of Implied Contracts
3. Estoppel Against Employer

A. Requirement of Independent Consideration

1. Contract for Permanent or Lifetime Employment
2. Contract for Definite Terms
3. Contract Arising or Modified During Employment
4. Contract Arising From Personnel Manual

B. Employee's Actions as Providing Independent Consideration

1. In General
2. Relinquishment of Existing Employment
3. Declining Other Job Offer at Time of Hire
4. Declining Job Offer During Employment
5. Moving to Location of New Employment
6. Release or Settlement of Personal Injury or Workers' Compensation Claim
7. Investment in Employer's Business
8. Gratuitous Conveyance to Employer
9. Agreement To Purchase Goods
10. Employment as Strikebreaker
11. Commitment To Remain With Employer for Certain Period
12. Acceptance of Reduction in Compensation from Employer
13. Miscellaneous

A. Traditional View: Mutuality Required
B. Emerging View: Mutuality Not Required

A. In General
B. Statute of Frauds

1. In General
2. Particular Types of Contracts
3. Removing Bar of Statute

A. General Rule and Duty To Mitigate
B. Types of Compensatory Damages Recoverable
C. Recoverability of Compensatory Damages for Unexpired Term After Trial
D. Availability of Punitive Damages
E. Availability of Restatement
F. Effect of Anticipatory Breach

Back to top

Chapter 4:
Other Tort Remedies

I. Intentional Infliction of Emotional Distress

A. Nature of Tort
B. Application to Wrongful Discharge Context
C. The Agis Decision
D. Particular Fact Patterns

1. Racial Epithets
2. Harassment To Force Resignation
3. Accusations of Theft or Other Improprieties
4. Abuse in Course of Discharge Procedures
5. Miscellaneous Types of Employer Misconduct

A. Nature of Tort
B. Application to Wrongful Discharge Context

1. At-Will Nature of Contract as Affecting Availability of Remedy
2. Nonliability of Employer for "Interfering" With Own Employment Contract
3. Actions of Employee's Superiors as Those of Employer

A. Nature of Tort
B. Application to Wrongful Discharge Context
C. Cause of Action Stated or Proved

A. Nature of Tort
B. Application to Wrongful Discharge Context

A. Nature of Tort
B. Application to Wrongful Discharge Context

1. Theoretical Considerations
2. Representative Cases

A. Nature of Tort
B. Application to Wrongful Discharge Context

A. Nature of Tort
B. Application to Wrongful Discharge Context

Back to top

Chapter 5:
Statutory Remedies

I. Introduction

A. Title VII

1. Coverage
2. Enforcement
3. Relief

B. Civil Rights Act of 1866 and 1870

1. Coverage
2. Enforcement
3. Relief

C. Civil Rights Act of 1871

1. Coverage
2. Enforcement
3. Relief

D. Ku Klux Klan Act of 1871

1. Coverage
2. Enforcement
3. Relief

E. Age Discrimination in Employment Act of 1967

1. Coverage
2. Enforcement
3. Relief

IV. Federal Statutory Preemption of State Wrongful Discharge Actions

A. ERISA Preemptions
B. NLRA and LMRA Preemption
C. FRLA Preemption

VI. Antiretaliation Provisions

A. Federal
B. State

Back to top

Chapter 6:
Pretrial and Trial Procedures

I. Plaintiff's Preliminary Steps

A. Preparing for Initial Client Interview

1. Screening
2. Employee Not Yet Terminated
3. Recently Terminated Employee
4. Resignation Agreements
5. Symptoms of Wrongful Termination
6. Obtaining Information
7. Reviewing Personnel File and Other Documents

B. Personal Interview

1. Evaluating Case
2. Refusing Case: Sample Letter
3. Accepting Case
4. Sample Retainer Agreement

C. Sample Form: Attorney's Case-at-a-Glance

A. General Considerations

1. When Should Action Be Filed?
2. Choice of Forum
3. Who Should Be Named Parties?

B. Allegations

1. Introduction
2. Basic Allegations for All Causes of Action
3. Most Commonly Used Causes of Action
4. Alleging Agency and Ratification
5. Alleging Damages

C. Sample Complaint

A. Introduction
B. Availability of Insurance Coverage
C. Defendant's Answer to Complaint

A. Preparing Plaintiff for Deposition
B. Plaintiff's Strategy

1. Interrogatories to Defendant
2. Sample Interrogatories: Plaintiff's Interrogatories to Defendant
3. Request for Production of Documents; Sample Request for Documents
4. Depositions of Other Witnesses
5. Experts

C. Defense Strategy

1. Initial Investigation
2. Plaintiff's Deposition
3. Interrogatories and Requests for Admission: Sample Interrogatories to Plaintiff
4. Request for Production of Documents: Sample Request for Documents
5. Other Depositions

VI. Settlement

VII. Trial

A. Strategies Common to Plaintiff and Defendant: Motions in Limine
B. Jury Selection
C. Opening Statements
D. Plaintiff's Trial Strategy
E. Defendant's Trial Strategy
F. Motions During Trial
G. Plaintiff's Closing Argument
H. Defendant's Closing Argument
I. Sample Jury Instructions

1. Contract Defined
2. Breach by Failure To Render a Promised Performance
3. Employment Contract Defined
4. Actual and Constructive Discharge Defined
5. Basis of Employer's Liability
6. Violation of Public Policy Defined
7. Elements of Tort of Discharge in Violation of Public Policy
8. Wrongful Constructive Discharge in Violation of Public Policy
9. Duration of Contract Without Specified Terms
10. Express Agreement Not To Terminate Except for Good Cause
11. Implied Agreement Not To Terminate Except for Good Cause
12. Good Cause Defined
13. Breach of Good Cause Agreement
14. Liability for Breach of Covenant of Good Faith and Fair Dealing
15. Elements of Bad Faith Discharge
16. Good Faith Mistaken Belief
17. Manner of Termination
18. Obligation of Employer To Deal Fairly Is Unconditional
19. Intent To Injure Plaintiff Not Required
20. Failure To Conduct Adequate Investigation
21. Duty To Exercise Discretionary Contractual Power in Good Faith
22. Right of Employee To "Blow the Whistle"
23. Managerial Privilege: When Individual Not Liable
24. Damages

J. Sample Verdict Forms

1. General Verdict for Plaintiff
2. Special Verdict for Plaintiff

Table of Cases

Index

Back to top

• Back to description
  
• Author's Biography