Lead Opinion
May administrative regulations be a source of fundamental public policy that limits an employer’s right to discharge an otherwise at-will employee? Although our Legislature has determined that an emplovment contract is generally terminable at either-party’s will (Lab. Code, § 2922),
Following Tameny, supra,
We continue to believe that, aside from constitutional policy, the Legislature, and not the courts, is vested with the responsibility to declare the public policy of the state. (See AIU Ins. Co. v. Superior Court (1990)
We therefore affirm the Court of Appeal’s judgment in favor of Richard Green (plaintiff) and against Ralee Engineering Company (defendant), and we remand the matter for proceedings consistent with this judgment.
Discussion
A. Summary Judgment Rules
Because the case arises out of a summary judgment motion that the trial court originally granted, we initially note that under the 1992 and 1993 amendments to Code of Civil Procedure section 437c, a defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the [plaintiff’s] cause of. action . . . cannot be established . . . .” (Code Civ. Proc., § 437c, subd. (o)(2).)
Both the trial courts and the appellate courts apply these principles in resolving summary judgment motions. “On appeal, however, the appellate court conducts an independent review of the trial court’s resolution of questions of law. [Citations.]” (Davis v. Consolidated Freightways (1994)
B. Facts
The principal facts alleged are these: Defendant manufactures fuselage and wing components for military and civilian aircraft. It supplies those parts to major airline assembly companies such as Boeing and to major war plane assembly companies such as Northrop. In 1968, defendant hired plaintiff as a quality control inspector. Plaintiff was an at-will employee, and, as such, could be discharged at any time, and for any reason not otherwise prohibited
Beginning in 1990, plaintiff allegedly noticed defendant was shipping some airplane parts even though, according to plaintiff, they failed the inspections his team performed. On several occasions over the next two years, plaintiff objected to defendant’s practice to supervisory and management personnel and to the company president. Plaintiff made all of his complaints internally, and at no time did he complain to outside government sources.
According to plaintiff, his complaints met with varying results. Defendant corrected its practices to conform to Northrop’s contractual requirements. Nonetheless, defendant continued to ship allegedly defective parts to Boeing. In an effort to provide proof of the ongoing practice, plaintiff began photocopying the inspection reports, including some reports concerning parts destined for Boeing.
In March 1991, defendant shut down its night shift, citing a downturn in orders for the parts it produced. Defendant then discharged plaintiff along with other night shift employees. At the same time, defendant retained several other night shift inspectors, some with less experience than plaintiff.
Plaintiff filed a timely wrongful termination action against defendant. He alleged defendant terminated him in retaliation for his complaints about its inspection practices. Plaintiff also claimed his complaints served a broad public policy favoring aviation safety, entitling him to tort damages even though he was an at-will employee.
Defendant sought summary judgment against plaintiff. Defendant observed it was entitled to discharge plaintiff, an at-will employee, even if it was motivated by his objections to its inspection and shipping practices, because no statute or constitutional provision specifically prohibited these practices. Defendant claimed that plaintiff could not establish his cause of action for wrongful termination as a matter of law (Code Civ. Proc., § 437c, subd. (o)(2)) because “[p]laintiff’s termination was not in violation of any fundamental public policy embedded in either a statute or constitutional provision.” Defendant noted that plaintiff cited to the entire Federal Aviation Act of 1958 (49 U.S.C. former appen. § 1301 et seq., now § 40101 et seq.) to
The trial court granted summary judgment in defendant’s favor. It stated that plaintiff was an at-will employee whom defendant could discharge without cause. (§ 2922.)
Plaintiff appealed, and the Court of Appeal reversed the judgment. After engaging in independent research, the court identified several key federal regulations involving airline safety on which plaintiff now relies and requested supplemental briefing on whether those regulations could form the basis for plaintiff’s public policy claim. The court considered defendant’s contention that during the pretrial discovery phase plaintiff failed to produce the appropriate statutes to support his assertion at the summary judgment stage, but concluded that plaintiff had adequately identified several relevant FAA regulations as part of his opposition to summary judgment. Finding airline safety so closely tied to the statutory and regulatory purpose, the Court of Appeal concluded that plaintiff had established a sufficient connection between the public policy favoring safe manufacture of passenger aircraft and federal law to satisfy our rule that the public policy be based on either a statute or constitutional provision.
Defendаnt argues principally that, even if we assume it did everything plaintiff claimed, its conduct violated no public policy embodied in a constitutional or statutory provision. Consequently, defendant argues, plaintiff’s discharge fails to qualify as a wrongful discharge justifying a Tameny claim.
As we explain, we agree with the Court of Appeal in concluding that the federal safety regulations promulgated to address important public safety concerns may serve as a source of fundamental public policy. The regulations satisfy our requirement that the action be tethered to fundamental policies delineated in a statutory or constitutional provision. (Stevenson, supra,
This case requires us to restate and reaffirm our recent cases explaining what sources may be used to support a Tameny action as an exception to our statutory employment-at-will principle (§ 2922).
In Foley v. Interactive Data Corp. (1988)
In discussing whether an employee’s Tameny claim could state a discharge that actually implicated public policy, we held that “[t]he absence of a distinctly ‘public’ interest in this case is apparent when we consider that if an employer and employee were expressly to agree that the employee has no obligation to, and should not, inform the employer of any adverse information the employee learns about a fellow employee’s background, nothing in the state’s public policy would render such an agreement void. By contrast, in the previous cases asserting a discharge in violation of public policy, the public interest at stake was invariably one which could not properly be circumvented by agreement of the parties. For example, in Tameny, supra,
In Gantt, we discussed further the requirements for a wrongful discharge claim alleging a public policy violation. Gantt considered whether an employee stated a cause of action for wrongful discharge against public policy
Gantt’s limitation on public policy sources (that they must be supported by either constitutional or statutory provisions) grew from our belief that “ ‘public policy’ as a concept is notoriously resistant to precise definition, and that courts should venture into this area, if at all, with great care and due deference to the judgment of the legislative branch” in order to avoid judicial policymaking. (Gantt, supra,
Although Gantt did not address whether its rule includes governmental regulations adopted to implement particular constitutional or statutory provisions, the court did observe the considerable disparity existing between those states adopting broad views of the public policy exception and those applying a stricter limitation on how they define public policy.
In 1984, our Legislature provided “whistle-blower” protection in section 1102.5, subdivision (b), stating that an employer may not retaliate
Like California, most sister states recognize a public policy exception to at-will employment.
After Gantt, we decided several wrongful termination cases that refined and explained its reasoning, including Turner v. Anheuser-Busch, Inc. (1994)
In General Dynamics Corp. v. Superior Court (1994)
In Jennings v. Marralle (1994)
In Stevenson, we concluded that the FEHA policy prohibiting age discrimination against older workers supported the plaintiff’s Tameny claim after she was discharged by an employer who employed more than four persons. (Stevenson, supra,
Our review of the above cases makes clear that wrongful termination cases involving a Tameny cause of action are limited to those claims finding support in an important public policy based on a statutory or constitutional provision. (Stevenson, supra, 16 Cal.4th at pp. 888-890.) This limitation recognizes an employer’s general discretion to discharge an at-will employee without cause under section 2922, and best serves the Legislature’s'goal to
D. FAA Regulations
Federal regulations promoting the proper manufacture and inspection of component airline parts advance the important public policy objectives we have discussed in the cases following Tameny, supra,
In United States v. Varig Airlines (1984)
More importantly, Varig held that “[i]n the exercise of this discretion, the FAA, as the Secretary’s designee, has devised a system of compliance review that involves certification of aircraft design and manufacture at several stages of production. [Citation.] The FAA certification process is founded upon a relatively simple notion: the duty to ensure that an aircraft conforms to FAA safety regulations lies with the manufacturer and operator, while the FAA retains the responsibility for policing compliance. Thus, the manufacturer is required to develop the plans and specifications and perform the inspections and tests' necessary to establish that an aircraft design comports with the applicable regulations . . . .” (Varig, supra, 467 U.S. at pp. 816-817 [
That Congress delegated to the FAA regulatory power in the commercial aircraft safety context is not unusual or surprising. A substantial body of
In California, administrative agencies routinely adopt quasi-legislative regulations under express statutory authority. For such regulations to be valid in this state, they must be consistent “with the terms or intent of the authorizing statute.” (California Assn. of Psychology Providers v. Rank (1990)
Plaintiff performed the FAA-required inspections on the parts intended for use in Boeing aircraft to further a fundamental public policy: “to ensure that each article produced conforms to the type design and is in a condition for safe operation.” (14 C.F.R. § 21.143(a) (1998).) Therefore, this regulation-based fundamental public policy may serve as the foundation for plaintiff’s Tameny claim. It furthers important safety policies affecting the public at large and does not merely serve either the employee’s or employer’s personal or proprietary interest. (Foley, supra, 47 Cal.3d at pp. 669-671.) As we have noted, “ ' “[t]here is no public policy more important or more fundamental than the one favoring the effective protection of the lives
E. Defendant’s Claims
1. Alleged procedural deficiencies
As defendant observes, in wrongful termination cases we have rejеcted public policy claims that were “largely unaccompanied by citations to specific statutory or constitutional provisions.” (Turner, supra,
After engaging in independent research, the Court of Appeal identified the regulations on which plaintiff now relies and requested supplemental briefing on whether those regulations could form the basis for plaintiff’s public
2. Balancing public policy and legislative province
Defendant contends that including regulations as a potential public policy source does not strike the proper balance between employer and employee that our cases require. (See, e.g., Stevenson, supra,
As plaintiff correctly observes, however, no reasonable parts manufacturer could read the applicable federal regulations and believe it was free to supply defective parts to airline companies. Moreover, by allowing employees to rely on regulations that are supported by the important policies of the Federal Aviation Act, we satisfy our goal to balance the competing interests by (1) providing the employer with proper warning it is violating fundamental public policies, (2) ensuring employees are protected against employer actions that contravene fundamental policy, and (3) guaranteeing to the public that employers’ interests will not be protected at the expense of society’s most important policies. (See Gantt, supra, 1 Cal.4th at pp. 1090-1091; Foley, supra, 47 Cal.3d at pp. 669-671.)
3. The FAA regulations’ effect on the public at large
Defendant also contends that the particular administrative regulations here affect only the personal or proprietary interests of employers who apply for certification and do not inure to the public’s benefit. Thus, defendant claims, no public interest exists to justify plaintiff’s claim. (Foley, supra, 47 Cal.3d at pp. 670-671, fn. 12.) Defendant asserts thе provisions are not “firmly established,” “fundamental,” and “substantial” as Tameny requires (Tameny, supra, 27 Cal.3d at pp. 172, 176-177), but are merely procedural because the
The critical distinction between the facts here and those at issue in Foley, supra, 47 Cal.3d at pages 670-671, footnote 12, is that there the violations of internal practices affected only the employer’s interest, while here defendant’s alleged misconduct potentially jeopardized airline passenger safety. Protecting airline passengers, therefore, is the relevant fundamental public policy at issue. Promoting airline safety—the subject of the federal regulations—constitutes a policy of sufficient public importance. As plaintiff points out, travel by any common carrier inevitably concerns the public, because a common carrier’s mistake or a manufacturer’s defective part can cause multiple casualties. Thus, the public policy that is the foundation for plaintiff’s case not only satisfies Foley’s requirement for a “public” interest, but also Tameny’s requirement for a “fundamental” policy interest. (Foley, supra,
4. Notice of federal law violations
Defendant claims that even if we allow a public policy claim based on specific regulatory violations, plaintiff’s case fails because his complaints focused on defendant’s internal practices and procedures, and because he did not give defendant proper notice that it violated any federal law.
We cannot agree. By informing defendant that he believed it was shipping defective parts for use in passenger aircraft, plaintiff gave defendant adequate notice that his concern involved potentially significant public policy matters because the FAA requires manufacturers to establish quality control procedures for the component parts they produce. (14 C.F.R. § 21.143 (1998).) Thus, unlike some cases in which an employer’s viоlation of its own internal procedures does not implicate public policy (see, e.g., Turner, supra,
5. Violation of FAA regulations
Defendant next attempts to refute plaintiff’s wrongful termination claim on the ground that plaintiff failed to prove defendant actually violated any law, including the FAA regulations, or that defendant’s alleged inadequate inspection practices were, in fact, hazardous. Defendant specifically relies on Jennings, in which we held that the FEHA statutory ban on age discrimination was “inseparable from ... the legislative statement of policy” (Jennings, supra,
Here, plaintiff predicated his action on the important public policy Congress declared when it enacted the Federal Aviation Act. (49 U.S.C. § 44101; In re Air Crash Disaster Near Silver Plume, Colo. (D.Kan. 1977)
To the extent defendant also clаims that the FAA regulations do not even apply to its operations because it apparently never applied for certification under the FAA provisions, its argument also fails at the summary judgment stage of proceedings. If plaintiff’s allegations are true, then defendant arguably misrepresented the safety of the parts shipped to prime manufacturers such as Boeing, on which information these manufacturers would foresee-ably rely for their own certification program, causing these manufacturers to submit to the FAA information that would have misrepresented the safety and soundness of some airplane parts. Therefore, whether or not defendant itself was applying for certification, there can be no question that any representations it made that caused the certification of an airplane with defective parts was a breach of a fundamental public policy as evidenced in a federal regulation. (See United States v. Steiner Plastics Mfg. Co. (2d Cir. 1956)
Accordingly, as the Court of Appeal stated: “The fact [the inspections] were performed by [defendant] as a ‘manufacturer’s supplier’ rather than by Boeing as a ‘prime’ manufacturer does not mean they were any less important to the public policy favoring safe manufacture of passenger aircraft. Nor
Moreover, as the Court of Appeal has held, an employee need not prove an actual violation of law; it suffices if the employer fired him for reporting his “reasonably based suspicions” of illegal activity. (See Collier v. Superior Court (1991)
Thus, though it may be unclear whether defendant, as a subcontractor or supplier, legally violated the FAA regulations, its alleged conduct in shipping nonconforming parts to an aircraft manufacturer violated the public policies embodied in the regulations. In other words, defendant’s alleged conduct may have contravened the fundamental well-established policy “delineated in” the act and its regulations. (Gantt, supra,
6. Nature of plaintiff’’s claim
Defendant next insists that, because the regulations and statute on which plaintiff relies are wholly federal in nature, we should not “extend the common law public policy tort doctrine” to defendant’s alleged fеderal law violations. Defendant also asserts that we should bar plaintiff’s claim because neither the Federal Aviation Act nor the implementing regulations contain a provision prohibiting an employee’s retaliatory termination, nor do they provide for private civil damages. Defendant’s arguments are without merit. As plaintiff notes, Gantt holds employers responsible for knowing “the fundamental public policies of the state and nation.” (Gantt, supra, 1
The Court of Appeals of Oregon rejected a similar preemption argument in Anderson, supra, 886 P.2d at pages 1070-1072. Anderson observed that the Federal Aviation Act specifically states, “ ‘Nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.’ ” (Anderson, supra,
7. Federal law and wrongful termination
Defendant relies on several federal decisions that decline to recognize an “implied right of action” directly or impliedly based on the breach of a duty stated in a federal statute, particularly where the statute already provides a remedy. (See, e.g., Virginia Bankshares, Inc. v. Sandberg (1991)
8. California’s public policy doctrine and plaintiff’s claim
Defendant observes that California’s public policy doctrine is designed to advance “general social policies,” and not to compensate employees for specific violations. (Foley, supra,
9. Separation of powers doctrine
Defendant next contends that the separation of powers doctrine prevents the court from creating a public policy exception here because the California Legislature alone is responsible for creating new public policy. Although defendant concedes that we may recognize a public policy exists in the absence of a legislative declaration (Safeway Stores v. Retail Clerks etc. Assn., supra,
We disagree. When employers are charged with violating a fundamental public policy grounded in federal law, our cases do not require the state Legislature to have enacted an identical statute prohibiting the precise conduct alleged. (Gantt, supra,
We emphasize that not all administrative regulations can support such claims, but only those that implicate substantial public policies. As Foley demonstrated, it is insufficient for employees to allege that they were
Conclusion
We conclude that the public policy behind federal regulations concerning airline safety has a basis in statutory provisions, consistent with our rule that the public policy giving rise to a wrongful termination action have a basis in a constitutional or statutory provision. (Gantt, supra,
George, C. J., Mosk, J., and Werdegar, J., concurred.
Notes
All further statutory references are to the Labor Code unless otherwise indicated.
Subdivision (o)(2) was added to Code of Civil Procedure section 437c in 1992 as subdivision (n)(2). (Stats. 1992, ch. 1348, § 1, pp. 6702-6703.) It was amended and renumbered in 1993. (Stats. 1993, ch. 276, § 1.)
In the alternative, defendant asserted it was entitled to discharge plaintiff for photocopying company inspection reports without its authorization. Although defendant did not learn of the photocopying until it engaged in pretrial discovery, it reasoned that, under the after-acquired evidence doctrine, it would have been allowed to discharge plaintiff immediately had it learned of his activities at the time they occurred. (See Camp v. Jeffer, Mangels, Butler & Marmaro (1995)
For example, the New Jersey Supreme Court favored broadly defining public policy exceptions: “The sources of public policy include legislation; administrative rules, regulаtions or decisions; and judicial decisions. In certain instances, a professional code of ethics may contain an expression of public policy.” (Pierce v. Ortho Pharmaceutical Corp. (1980)
Several states do not recognize a public policy exception to the employment-at-will doctrine. (See, e.g., Murphy v. American Home Products Corp. (1983)
To the extent one can read Gantt, supra,
Defendant observes that Turner suggests plaintiffs should specify the statutory provisions on which they rely no later than at the summary judgment stage. (Turner, supra,
Defendant also contends that plaintiff’s opposition to the summary judgment motion failed to conform to Code of Civil Procedure section 437c because plaintiff filed it six days late and did not file a responsive separate statement of undisputed facts. Defendant raised these issues in the trial court, but the Court of Appeal did not address them, apparently concluding they did not represent matеrial procedural defects in plaintiff’s opposition to the motion. Because defendant did not call the issues to the court’s attention in a petition for rehearing, we do not consider them here. (Cal. Rules of Court, rule 29(b)(2).)
Concurrence Opinion
I concur in the judgment and in the overruling of this court’s decision in Gantt v. Sentry Insurance (1992)
Dissenting Opinion
I respectfully dissent.
For the past number of years, this court strove to contribute to a stable employment environment in California by holding that the public policy exception to the statutory right of employers to terminate employment at will (Lab. Code, § 2922
In Gantt v. Sentry Insurance (1992)
After due consideration of the conflicting decisional law and the competing interests at stake, this court rejected a broad approach and instead concluded that “[a] public policy exception carefully tethered to fundamental policies that are delineated in constitutional or statutory provisions strikes the proper balance among the interests of employers, employees and the public. The employer is bound, at a minimum, to know the fundamental public policies of the state and nation as expressed in their constitutions and statutes; so limited, the public policy exception presents no impediment to employers that operate within the bounds of law. Employees are protected against employer actions that contravene fundamental state policy. And society’s interests are served through a more stable job market, in which its most important policies are safeguarded.” (Gantt, supra,
Until today, we have followed Gantt consistently and have never questioned its conclusion that only a termination in violation of a fundamental public policy expressed in a statute or a constitutional provision would support a wrongful discharge action. (See Stevenson v. Superior Court (1997)
So much for precedent. Today’s decision dispenses with Gantt’s carefully considered limits and years of established case law. Henceforth, a Tameny
Under today’s rule, employers are deprived of adequate notice as to what conduct negates their right to terminate an at-will employee and exposes them to tort liability. As regulated employers are keenly aware, it is no small feat to keep abreast of all administrative regulations that govern their actions. Now, however, both regulated and nonregulated employers alike are expected to keep themselves fully informed of regulatory schemes applying to others. That is precisely the situation here. (14 C.F.R. § 21.143 (1998) [Federal Aviation Administration’s (FAA) certification procedures requiring prime manufacturers to submit data describing quality control inspection procedures].)
This court has already acknowledged the obvious lack of warning to employers with respect to regulatory statutes that do not apply to them: “It would be unreasonable to expect employers” to “realize that they must comply with the law from which they are exempted under pain of possible tort liability.” (Jennings, supra, 8 Cal.4th at pp. 135-136.) Given the multitude of administrative regulations that are “routinely adopt[ed]” under express statutory authority (see maj. opn., ante, at p. 82), it is even more unreasonable and more inequitable to expect employers to know that the at-will nature of their employment relationships may be destroyed by rules that do not even regulate their conduct.
To justify their holding, the majority reason that “no reasonable parts manufacturer could read the applicable federal regulations and believe it was free to supply defective parts to airline companies.” (Maj. opn., ante, at p. 84, italics added.) The majority also conclude that “[b]y informing defendant that he believed it was shipping defective parts for use in passenger aircraft, plaintiff gave defendant adequate notice that his concern involved potentially significant public policy matters because the FAA requires manufacturers to establish quality control procedures for the component parts they
As the foregoing suggests, the majority fail to articulate any objective criteria or standards to determine when a regulatory provision sufficiently expresses a fundamental public policy with respect to a particular employer. At most, the facts and analysis in this case indicate that employees may negate the at-will nature of their employment simply by complaining to their superiors about breaches of contracts with regulated third party entities.
The ramifications of today’s decision are ominous. Employers, to avoid exposure to Tameny claims, must familiarize themselves with all statutorily authorized regulations of the nation and state applying to all of the entities with which they contract, as well as all such regulations applying to their own particular industries. The resulting burden to employers is tremendous and cannot be denied. Indeed, the majority make no attempt to do so.
Just as troubling is the majority’s intrusion upon the legislative domain in diminishing the statutory right of employers to terminate employees at will in the absence of any legislatively expressed fundamental public policy to
Setting aside any policy debate over the necessity of public disclosure, I observe that, even assuming for purposes of argument that the “quasi-legislative” expression of public policy in an administrative regulation deserves consideration equal to a statutory expression of policy for purposes of negating at-will employment, and even assuming that the FAA regulation at issue manifests a public policy that is fundamental, the majority overreach in finding that the regulatory policy extends to the defendant employer here.
As the majority acknowledge, “Congress has specifically directed the FAA to ‘assign[], maintain[], and enhanc[e] safety and security as the highest priorities in air commerce’ and to regulate air commerce ‘in a way that best promotes its . . . safety.’ (49 U.S.C. § 40101(d)(1), (2).)” (Maj. opn., ante, at p. 90, italics added.) Following that directive, the FAA promulgated a regulation that requires prime manufacturers such as Boeing and Northrup to submit data describing quality control inspection procedures for airline parts and assemblies. (14 C.F.R. § 21.143 (1998).) The FAA has made clear, however, that the duty to ensure aircraft conformity with FAA safety regulations lies with the prime manufacturer, not suppliers such as dеfendant here. (Ibid.; see United States v. Varig Airlines (1984)
Since the FAA determined that the public interest in ensuring quality control is best served by its oversight of prime manufacturers, it is presumptuous, to say the least, for this court to find in the subject regulation a fundamental public policy that extends to employers whose conduct the FAA has not chosen to regulate. (Cf. Jennings, supra, 8 Cal.4th at pp. 135-136.) On matters of fundamental public policy, it is not the function of judges to
The majority rely on several out-of-state cases to support their decision to allow wrongful discharge claims involving airline safety. But in those cases, there was no dispute that the particular employers and/or employees were subject to regulation by the FAA or that direct violations of FAA safety regulations were involved. (E.g., Anderson v. Evergreen Intern. Airlines, Inc. (1994)
In closing, let me be clear. Like the majority, I strongly support motherhood, the American flag and commercial air safety. I also strongly agree with Congress’s recognition that air safety is of vital public importance. But that is not enough to justify the result here. As the majority implicitly conclude, the congressionally expressed policy to promote air safety, standing alone, is too generalized a mandate to make any enforcement of the policy practicable through employment-related litigation. Having reached that conclusion, the majority should put an end to the instant litigation in strict accordance with Gantt’s limits on the permissible sources of public policies for Tameny claims. Although the majority claim to see a “clearly mandated public policy” in a regulation that has no applicability to defendant, what I see is a clear case of judicial policymaking.
Since the majority’s lack of discipline undoes years of decisional law, I join Justice Brown in her call for this court to take a fresh look at the public policy exception and its underlying rationale.
Brown, J., concurred.
All further statutory references are to this code unless otherwise specified.
General Dynamics Corp. v. Superior Court (1994)
Although the instant case involves what the majority describe as “regulations promulgated to address important public safety concerns” (maj. opn., ante, at p. 74), their overruling of Gantt is absolute with respect to statutorily authorized regulations (maj. opn., ante, at p. 80, fn. 6). Accordingly, any “fundamental” regulatory policy affecting the public interest may now qualify as a basis for the public policy exception.
Although the majority vaguely claim that “[p]laintiff performed the FAA-required inspections on the parts intended for use in Boeing aircraft” (maj. opn., ante, at p. 82, italics added) and that the “internal quality control procedures at issue in this case are part of a statutory and regulatory scheme established by Congress and the FAA” (id. at p. 85, italics added), the record is devoid of any evidence supporting such claims. Plaintiff did not submit any evidence to counter defendant’s evidence that it was “not subject to any statutory or regulatory authority with respect to its inspection practices and documents,” and the most plaintiff has claimed is that Boeing ended its business relationship with defendant as a result of plaintiff’s post-termination complaints. (See post, fn. 5.) Noticeably missing is any legal authority or evidence showing that the FAA considers parts suppliers such as defendant to be subject to its oversight.
In addition to the facts recited by the majority, other evidence in the record shows that after plaintiff was fired he informed Boeing about defendant’s alleged shipping of “discrepant” parts. But the only reported consequence of plaintiff’s disclosure is that Boeing removеd defendant from its list of approved suppliers. Plaintiff does not claim, and the record does not show, that the FAA ever investigated defendant’s practices or that it attempted to ban or discourage prime manufacturers from contracting with defendant. In short, the only demonstrated outcome of plaintiff’s complaints was that a private business relationship between two commercial entities was terminated.
This section, known as the “whistleblower” statute, provides in relevant part: “No employer shall retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or violation or noncompliance with a state or federal regulation.” (§ 1102.5, subd. (b).)
Air Lines Pilots Association, International v. Quesada, supra,
Dissenting Opinion
I dissent.
I
“Because air safety ranks somewhere in pecking order between motherhood and the American flag, it would be easy to concur fully in the majority opinion.” (F.A.A. v. Landy (2d Cir. 1983)
With legerdemain Harry Houdini would envy, the majority summarily dispatches recent efforts by this court to contain the “potent remedy” of tortious wrongful termination actions within workable confines. (Gantt v. Sentry Insurance (1992)
In his dissent, Justice Baxter has cogently detailed many of the critical flaws and failings of the majority opinion. His analysis is compelling, and I fully endorse it. Because his criticisms and observations highlight the increasing disarray in our Tameny jurisprudence, I write further to discuss some of the reasons for our current muddle and to suggest a possible approach to a solution.
II
For the last decade, since Foley v. Interactive Data Corp. (1988)
In Tameny, supra,
The majority also failed to rationalize allowing a wrongful termination cause of action in derogation of the statutory principle of at-will employment set forth in Labor Code section 2922.
Three years later, the New York Court of Appeals cited similar reasons for declining to adopt a public policy exception to at-will employment: “Those jurisdictions that have modified the traditional at-will rule appear to have been motivated by conclusions that the freedom of contract underpinnings of the rule have become outdated, that individual employees in the modem work force do not have the bargaining power to negotiate security for the jobs on which they have grown to rely, and that the rule yields harsh results for those employees who do not enjoy the benefits of express contractual limitations on the power of dismissal. Whether these conclusions are supportable or whether for other compelling reasons employers should, as a matter of policy, be held liable to at-will employees discharged in circumstances for which no liability has existed at common law, are issues better left to resolution at the hands of the Legislature. In addition to the fundamental question whether such liability should be recognized in New York, of
“Both of these aspects of the issue, involving perception and declaration of relevant public policy (the underlying determinative consideration with respect to tort liability in general [citations]) are best and more appropriately explored and resolved by the legislative branch of our government. The Legislature has infinitely greater resources and procedural means to discern the public will, to examine the variety of pertinent considerations, to elicit the views of the various segments of the community that would be directly affected and in any event critically interested, and to investigate and anticipate the impact of imposition of such liability. Standards should doubtless be established applicable to the multifarious types of employment and the various circumstances of discharge. If the rule of nonliability for termination of at-will employment is to be tempered, it should be accomplished through a principled statutory scheme, adopted after opportunity for public ventilation, rather than in consequence of judicial resolution of the partisan arguments of individual adversarial litigants.” (Murphy v. American Home Products Corp. (1983)
This analysis reflects an understanding that the Legislature is at least as able as the courts to recognize “the arbitrariness of an absolute right to discharge in light of contemporary employment relationships and the incompatibility of such a right to the attainment of a broad range of statutory objectives” (Tameny, supra,
As discussed below, the crucial flaw in Tameny was in failing to articulate a rationale for creating an exception to the at-will employment rule. Because
Ill
To fault the analysis in Tameny is not to say the court reached the wrong result, only that, as Justice Manuel suggested, it should have done so by more modest means. A restrained approach would have been more consistent with the accretive nature of the common law and would have provided a clearer, more enduring rationale upon which to predicate future applications.
This court was not without precedent for developing common law principles in similar circumstances. In Li v. Yellow Cab (1975)
Analyzing the legislative perspective and purpose of the 1872 Civil Code, the court explained “it was not the intention of the Legislature in enacting section 1714 of the Civil Code, as well as other sections of that code declarative of the common law, to insulate the matters therein expressed from further judicial development; rather it was the intention of the Legislature to announce and formulate existing common law principles and definitions for purposes of orderly and concise presentatiоn and with a distinct view toward continuing judicial evolution.” (Li, supra,
Finding authority to act did not end the inquiry; the court also examined a variety of “considerations of a practical nature” implicated in the proposed change. (Li, supra,
No such orderly evolution has attended the development of our Tameny jurisprudence because the genesis was fatally flawed. In fact, it would be difficult to conceive a less auspicious beginning for a cause of action patently treading on legislative prerogatives. In the critical first instance, the court undertook no thorough reexamination of the matter, failed to explain how its holding was in furtherance of the purposes underlying the statutory framework of employment relations, and gave no apparent thought to considerations of a practical nature. (Li, supra, 13 Cal.3d at рp. 820, 823.) Instead, it arrogated to the courts the role of vindicating fundamental public policy, which it made the sole determinant of this potent remedy but left entirely undefined in context.
As Justice Baxter’s dissent well documents, today’s decision marks the culmination of the chaos wrought by the court’s failure to adopt a disciplined and principled approach as in Li. To begin, the Tameny court failed to recognize that it was operating within an existing statutory scheme. The plaintiff’s employment was admittedly at will under Labor Code section 2922 (see ante, at p. 99, fn. 2), yet the court engaged in only conclusory analysis in justifying its disregard of that fact. (Tameny, supra, 21 Cal.3d at pp. 173-174.) Nor did the court attempt to explain the need to resort to “fundamental public policy” to validate the plaintiff’s tort claim. Labor Code section 2856 (see ante, at p. 99, fn. 1) would certainly have sufficed since the complaint alleged “that ‘the sole reason’ for [his] discharge was his refusal to commit the ‘grossly illegal and unlawful acts which defendants tried to force him to perform.’ ” (Tameny, supra, 21 Cal.3d at p. 171, fn. omitted; see id. at p. 179 (conc. opn. of Manuel, J.).)
Instead of a more circumspect approach, we effectively conferred on the courts the role of declaring public policy, a function first and foremost reserved to the Legislature. (See Gantt, supra,
The problem lies not simply in the overreaching, but also in making the only guiding principle “fundamental public policy.” (See, e.g., Tameny, supra,
By its very nature, fundamental public policy “requires an exercise of judicial judgment that cannot be captured by the naked words of verbal formulae.” (Brecht v. Abrahamson (1993)
Until today, the court sensed the inherent tension and need to impose some of the discipline lacking in Tameny. Gantt attempted to reinstate the traditional balance between legislative and judicial roles in articulating public policy. (Gantt, supra,
The reason is one all too common to the judiciary: In each post-Tameny case, the court has engaged in decisionmaking by rote. We are content to rely on the “fundamental public policy” shorthand, confident we know one when we see it despite the admitted absence of any governing legal principles. (See maj. opn., ante, at p. 89; cf. Jacobellis v. Ohio (1964)
For all our avoidance, the task we face might prove deceptively simple. At their essence, tortious wrongful termination actions “are premised on closing
Adopting such an approach, the court would have fully articulated its rationale, and appropriate extension or limitation of its reasoning could proceed as an orderly evolution, not chaotic devolution. For example, the impetus in Gantt was to curtail the proliferation of Tameny claims. But, having to wrestle with “fundamental public policy” as the standard, it could only arbitrarily restrict them to causes of action predicated on statute or constitutional provision, some of which would still be unsuitable. (See Foley, supra,
IV
Llewellyn exhorts judges “to take at least one fresh look” each time they confront a recurring issue. (Llewellyn, The Common Law Tradition (1960) p. 293.) “The new prodding of the new facts may bring something better into focus. The quеer subconscious may this time be ready to give up an out which has been cooking down in there since the last time the court walked through these legal sandburs. In this effort to take a [fresh] look each time, the appellate court’s job, their duty, [is] to freshen up consciously .... It must not be what all habit, all routine, all weariness cry out that it is and has to be: just another of the shopworn same.” (Id. at pp. 293-294.)
Baxter, J., concurred.
Respondent’s petition for a rehearing was denied October 21, 1998. Baxter, J., and Brown, J., were of the opinion that the petition should be granted.
Labor Code section 2856 provides: “An employee shall substantially comply with all the directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee.”
Labor Code section 2922 provides in part: “An employment, having no specified term, may be terminated at the will of either party on notice to the other.”
A recent Court of Appeal decision in which this court denied a depublication request actually provides an even more apt illustration: In Phillips v. Gemini Moving Specialists (1998)
Civil Code section 4 provides: “The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. The Code establishes the law of this State respecting the subjects to which it relates, and its provisions are to be liberally construed with a view to effect its objects and to promote justice.”
Civil Code section 5 provides: “The provisions of this Code, so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof, and not as new enactments.”
On these facts, however, I would not agree with the majority’s determination that plaintiff has a viable cause of action. The Federal Aviation Act regulations alluded to do not apply to defendant. (See Jennings, supra, 8 Cal.4th at pp. 135-136.) Moreover, the Legislature has already determined plaintiff’s conduct should be accorded wrongful termination protection only when suspected regulatory violations are “disclos[ed] ... to a government or law enforcement agency . . . .” (Lab. Code, § 1102.5, subd. (b).) In my view, the statute articulates the extent of any relevant public policy. (Cf. Jennings, supra,