§ 6.1.4 Introduction. "Public policy" in this context refers generally to principles or interests that transcend private concerns.18 Recognition of the public policy exception reflects the courts' attempt to balance certain of society's basic civil, political, and social rights against an employer's claim to what might otherwise be an unrestricted right to terminate.19 The phrase "public policy" in many contexts is often vague and abstract,20 and what constitutes public policy is one of the most difficult issues facing employment practitioners.21
Nevertheless, when courts find that a clear mandate of public policy exists,22 that mandate overrides the effect of the at-will doctrine recognized by most jurisdictions, including Arizona,23 and limits the employer's right to terminate its employees.24 The violation of such a public policy is a tort25 and, depending on the circumstances, may support an award of punitive damages.26
In Arizona, the definition of public policy for purposes of the tort of wrongful discharge has been substantially impacted by the enactment of the Employment Protection Act (EPA),27 although the constitutionality of the EPA has been questioned.28 This statute defines wrongful discharge tort claims as those involving employer conduct that was retaliatory or in violation of a state statute that contains no remedy of its own.29
The stated intent of the legislature in enacting the EPA, as expressed in the statute's preamble,30 includes affirming the right of employees to recover for employment terminations that violate public policy,31 while simultaneously providing employers with increased certainty as to "what actions constitute violations of the laws for which they are subject to civil damages."32 The legislative history and intent of the EPA are discussed in more detail in Article 1.2.8.1, supra.
In Cronin v. Sheldon,33 the Arizona Supreme Court found the EPA's preamble to be "patently unconstitutional,"34 but nevertheless rejected a constitutional challenge to the portion of the EPA itself that limits wrongful discharge tort claims premised upon the public policy expressed in a state statute to situations in which the statute contains no remedy of its own.35 More specifically, the Cronin court held that the EPA's abrogation of the tort claim premised upon an employer's violation of the public policy reflected in the Arizona Civil Rights Act (ACRA),36 which had been recognized by the Arizona Court of Appeals in Broomfield v. Lundell,37 did not violate the anti-abrogation38 or nonlimitation39 provisions of the Arizona Constitution.40
In Gallegos v. Flores,41 the Arizona Court of Appeals, in an unpublished decision, suggested that despite the holding in Cronin, the EPA would not necessarily "abrogate common-law causes of action that existed before [the] ACRA and that protect interests different than those protected by [the] ACRA."42 Cronin also left open other constitutional issues underlying the EPA,43 some of which are discussed in Article 1.2.8.1.2, supra.44
The EPA gives an employee the right to recover for employment terminations if the employer violated public policy in terminating the employee.45 However, the term "employer" is not defined in the statute.46 In Higgins, the Arizona Court of Appeals held that under certain circumstances, the term may include a corporate officer or supervisor of an institutional employer.47 Thus, a supervisor may be personally liable for an employee's wrongful termination under the EPA if "the company has invested its supervisor with day-to-day control over the company, including the right to fire, and the supervisor has in fact exercised such control to harm another."48
The Higgins court also found that an employer is vicariously liable for the tortious acts of its employee under the EPA if "at the time the injury occurred the employee was performing a service in furtherance of his employer's business," even if the employee's acts were not done "in a manner exactly as the employer prescribed."49
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Notes:
[18] Wagenseller v. Scottsdale Mem'l Hosp., 147 Ariz. 370, 379, 710 P.2d 1025, 1034 (1985) ("Where the interest involved is merely private or proprietary...
