Employment At-Will: Washington
Author: Gloria Ju
- Employment relationships in Washington are presumed to be at-will, meaning the employment relationship can be terminated by either party, at any time, with or without cause. See The At-Will Relationship.
- Washington recognizes limited exceptions to the at-will presumption, including written and verbal contracts and public policy exceptions. See Employment At-Will Exceptions.
- At-will employees in Washington challenging a discharge may file claims against their employers under tort theories, including intentional infliction of emotional distress and defamation, so long as the employee is able to satisfy an evidentiary burden. See Tort Considerations.
The At-Will Relationship
Washington is an at-will employment state. Absent a contract of employment for a specified period, either the employer or employee can terminate employment at any time, with or without cause. See Webster v. Schauble, +65 Wn.2d 849 (1965).
Employers should note that, despite the at-will nature of the employment relationship, employees have a right to receive a written statement of the reason for termination. Within 10 business days of receiving a written request by a former employee, an employer must furnish a signed, written statement stating the reasons for and effective date of termination. +Wash. Admin. Code § 296-126-050. For detailed information regarding the termination process in Washington see Process of Termination: Washington.
Employment At-Will Exceptions
When the parties to an employment relationship enter into an express, written agreement, Washington courts will often require just cause for an employer to terminate the agreement prematurely.
When the parties have made such an agreement, employers have the ability to revert back to at-will employment, but they must provide the employee with adequate consideration for his or her agreement to give up the protection of a contract. Flower v. TRA Industries, Inc., +111 P.3d 1192 (Wash. 2005).
Employee handbooks. An employer's right to terminate an at-will employee can be modified by statements contained in employee policy manuals or handbooks issued by an employer to its employees. If an employer promises specific treatment in specific situations, thereby creating an atmosphere of job security and fair treatment and inducing an employee to remain on the job and not actively seek other employment, those promises are enforceable components of the employment relationship. See Thompson v. St. Regis Paper Co., +102 Wash. 2d 219 (1984). The employee must demonstrate that he or she was aware of the handbook promise at the time of discharge (not after the fact) to make out such a claim. Bulman v. Safeway, Inc., +27 P.3d 1172 (Wash. 2001).
Disclaimers. Employers can avoid being bound by statements in employee handbooks by specifically stating in a conspicuous manner that nothing contained therein is intended to be part of the employment relationship and are simply general statements of company policy. Employers can also specifically reserve the right to modify policies or write them in a manner that retains discretion to the employer. See Thompson v. St. Regis Paper Co., +102 Wash. 2d 219 (1984).
Employers should be careful, however, to ensure that such disclaimers or acknowledgment forms are not directly contrary to other written provisions, progressive disciplinary policies, for example, and their common behaviors or representations toward other employees. Nelson v. Southland Corp., +894 P.2d 1385 (Wash. Ct. App. 1995).
Offer letters. Statements made by an employer when extending a job offer can alter the at-will relationship, including assurances indicating job security or permanent, continuous or future employment. See Swanson v. Liquid Air Corp., +118 Wn.2d 512 (1992).
Verbal promises. Oral assurances of job security or permanent, continuous or future employment can also alter the at-will employment relationship. See Swanson v. Liquid Air Corp., +118 Wn.2d 512 (1992). For instance, a Washington Court of Appeals held that an implied contract existed where the employee accepted a job, sold his house and moved from Alabama to Washington based on the employer's assurance that he would terminate the employment relationship only for good cause. The president of the company assured the employee that his biggest fault was keeping employees rather than letting them go, even if they underperformed, and that the employee would not be terminated without just cause or anything short of serious misconduct. See Flower v. TRA Industries, Inc., +127 Wash. App. 13 (2005).
Implied Covenant of Good Faith and Fair Dealing
Washington courts do not recognize the implied covenant of good faith and fair dealing as it pertains to at-will relationships. Specifically, Washington courts have found that the covenant is inconsistent with the very nature of at-will employment in that, by retaining employees at-will, the employer is expressly retaining its ability to terminate employees at any time, for any lawful reason. Thus, to require that employers only terminate employees in "good faith" would directly undermine the at-will relationship. Willis v. Champlain Cable Corp., +748 P.2d 621 (Wash. 1988).
The covenant does apply, however, to express contracts, meaning that employers that enter into such contracts may not seek to deprive the employees of benefits due to them under the contract or otherwise seek to disrupt the employee's performance of his or her contractual obligations.
Washington Antidiscrimination Laws
Washington prohibits employers from refusing to hire or to discharge any individual or to discriminate any individual based on certain protected categories. For detailed information regarding Washington's antidiscrimination laws, see Employee Management > EEO-Discrimination: Washington.
Public Policy Exceptions
Washington courts recognize public policy exceptions to the employment at-will doctrine in four different scenarios:
- The employee was terminated for refusing to commit an illegal act;
- The employee was terminated for performing a public duty or obligation;
- The employee was terminated for exercising a legal right or privilege; or
- The employee was terminated in retaliation for reporting employer misconduct. The employee's activity must seek to further the public good, and not merely private or proprietary interests.
Gardner v. Loomis Armored, Inc., +913 P.2d 377 (Wash. 1996).
When employees rely on public policy considerations to support a claim for wrongful discharge in violation of public policy, they must point to actual public policy that derives from one or more of the following sources:
- State or federal constitution;
- State or federal statute;
- Regulatory provision; or
- Prior judicial decisions.
Finally, to make a successful claim for wrongful termination in violation of public policy, the employee must demonstrate the following elements:
- A clear public policy existed, derived from one of the sources mentioned above;
- Termination for one of the protected activities, mentioned above, would undermine the public policy consideration;
- Termination was actually caused by the protected activity; and
- The employer has no other justification for the dismissal (court may dismiss the claim even if the termination would otherwise violate public policy).
Gardner v. Loomis Armored, Inc., +913 P.2d 377 (Wash. 1996).
In some situations, an at-will employee may pursue certain tort claims against an employer for allegedly improper conduct in connection with his or her termination. Washington recognizes the following claims.
Intentional Infliction of Emotional Distress
In order to make a successful claim for intentional infliction of emotional distress (IIED) against an employer, an employee must demonstrate the following:
- The employer committed extreme and outrageous conduct;
- The employer intentionally or recklessly inflicted emotional distress on the employee; and
- The employee suffered severe emotional distress.
Waller v. State, +824 P.2d 1225 (Wash. Ct. App. 1992).
In order to make a successful claim for defamation against an employer in Washington, an employee must demonstrate the following:
- The employer made a false statement;
- The employer's statement was unprivileged;
- The employer was negligent or malicious in making the statement; and
- The employee suffered damage to his or her reputation.
Caruso v. Local Union No. 690 of Int'l Bhd. Of Teamsters, Etc., +730 P.2d 1299 (Wash. 1987).
There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.