§ 6.1.7.1 Refusing to Participate in Illegal Behavior. A refusal to engage in illegal behavior was sufficient to support a wrongful discharge claim in Petermann225 (refusal to commit perjury),226 Vermillion227 (refusal to conceal theft),228 and Wagenseller229 (refusal to engage in indecent exposure).230 In order to prevail on such a claim, the terminated employee was not required to prove that participating in the activity necessarily would have resulted in a criminal prosecution,231 or even that it would have constituted an actual violation of the criminal law.232 The Wagenseller court stated:
The relevant inquiry . . . is not whether the alleged . . . incidents were either felonies or misdemeanors or constituted purely technical violations of the statute, but whether they contravened the important public policy interests embodied in the law. . . . In this situation, there might be no crime, but there would be a violation of public policy to compel the employee to do an act ordinarily proscribed by the law.233
The EPA codified the right of an employee terminated for refusing to commit an act that would violate the state constitution or state statutes to bring a tort claim for wrongful discharge,234 thereby arguably rejecting, by implication, employee protections for refusals to commit acts or omissions that would violate federal constitutional or statutory requirements, municipal codes, or ethical or moral standards that are not incorporated into the state constitutional or statutory scheme.235
In Lloyd v. AMF Bowling Centers, Inc.,236 the Arizona Court of Appeals rejected a public policy wrongful discharge claim asserted by an employee terminated for failing to report to work because he was unable to arrange for the care of his children.237 The plaintiff claimed that his termination violated public policy because reporting to work in compliance with his employer's directive "would have required him to leave his children unattended, thereby committing a criminal act."238 The court rejected this argument on the ground that the only act the employer required of the plaintiff was that he report to work, which was entirely lawful.239 The court reasoned as follows:
No public policy prohibits employers from calling at will employees and expecting them to appear at work, and then terminating them if they do not. [The plaintiff] would have us focus on the employee's reasons for not performing a lawful act in deciding this case. But that is neither required nor appropriate . . . . So long as the act required by the employer is a lawful act, the employee's reasons for not performing the act, however reasonable, are immaterial. If this were not the case and if we were to focus on the employee's excuse for nonperformance, we would be imposing an element of "reasonableness" on an employer's decision to terminate that does not currently exist in Arizona, because an employee may be terminated at the pleasure of either party, whether with or without cause. Such an expansion would erode the very essence of at will employment. It would insinuate the court between the employee and employer in every disputed termination and allow an employee's excuse to prevail over the employer's lawful job requirements.240
In Cummins v. Mold-In Graphics Systems,241 the Arizona Court of Appeals held, in a case that arose prior to the effective date of the EPA,242...
