California Civil Jury Instructions (CACI)

2430. Wrongful Discharge/Demotion in Violation of Public Policy - Essential Factual Elements

[Name of plaintiff] claims [he/she] was [discharged/demoted] from employment for reasons that violate a public policy. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] was employed by [name of defendant];

2. That [name of defendant] [discharged/demoted] [name of plaintiff];

3. That [insert alleged violation of public policy, e.g., "[name of plaintiff]'s refusal to engage in price fixing"] was a motivating reason for [name of plaintiff]'s [discharge/ demotion]; and

4. That the [discharge/demotion] caused [name of plaintiff] harm.

Directions for Use

The judge should determine whether the purported reason for firing the plaintiff would amount to a violation of public policy.

This instruction must be supplemented with CACI No. 2433, Wrongful Discharge in Violation of Public Policy—Damages. If plaintiff alleges he or she was forced or coerced to resign, then CACI No. 2431, Constructive Discharge in Violation of Public Policy—Plaintiff Required to Violate Public Policy, or CACI No. 2432, Constructive Discharge in Violation of Public PolicyPlaintiff Required to Endure Intolerable Conditions for Improper Purpose that Violates Public Policy, should be given instead.

The California Supreme Court has extended employment claims to encompass demotions or other similar employment decisions. (See Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 473-474 [46 Cal.Rptr.2d 427, 904 P.2d 834].) The bracketed language regarding an alleged wrongful demotion may be given, depending on the facts of the case, or other appropriate language for other similar employment decisions.

Sources and Authority

"[W]hen an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions." (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170 [164 Cal.Rptr. 839, 610 P.2d 1330].)

"[T]his court established a set of requirements that a policy must satisfy to support a tortious discharge claim. First, the policy must be supported by either constitutional or statutory provisions. Second, the policy must be 'public' in the sense that it 'inures to the benefit of the public' rather than serving merely the interests of the individual. Third, the policy must have been articulated at the time of the discharge. Fourth, the policy must be 'fundamental' and 'substantial.' " (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889-890 [66 Cal.Rptr.2d 888, 941 P.2d 1157], fn. omitted.)

"[T]he cases in which violations of public policy are found generally fall into four categories: (1) refusing to violate a statute; (2) performing a statutory obligation (3) exercising a statutory right or privilege; and (4) reporting an alleged violation of a statute of public importance." (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090-1091 [4 Cal.Rptr.2d 874, 824 P.2d 680], internal citations and fn. omitted, overruled on other grounds in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6 [78 Cal.Rptr.2d 16, 960 P.2d 1046]; accord Stevenson, supra, 16 Cal.4th at p. 889.)

"In addition to statutes and constitutional provisions, valid administrative regulations may also serve as a source of fundamental public policy that impacts on an employer's right to discharge employees when such regulations implement fundamental public policy found in their enabling statutes." (D'sa v. Playhut, Inc. (2000) 85 Cal.App.4th 927, 933 [102 Cal.Rptr.2d 495], internal citation omitted.)

"In the context of a tort claim for wrongful discharge, tethering public policy to specific constitutional or statutory provisions serves not only to avoid judicial interference with the legislative domain, but also to ensure that employers have adequate notice of the conduct that will subject them to tort liability to the employees they discharge. . . ." (Stevenson, supra, 16 Cal.4th at p. 889.)

"[A]n employee need not prove an actual violation of law; it suffices if the employer fired him for reporting his 'reasonably based suspicions' f illegal activity." (Green, supra, 19 Cal.4th at p. 87, internal citation omitted.)

"[A]n employer's authority over its employee does not include the right to demand that the employee commit a criminal act to further its interests, and an employer may not coerce compliance with such unlawful directions by discharging an employee who refuses to follow such an order . . ." (Tameny, supra, 27 Cal.3d at p. 178.)

Employees in both the private and public sector may assert this claim. (See Shoemaker v. Myers (1992) 2 Cal.App.4th 1407 [4 Cal.Rptr.2d 203].)

Secondary Sources

4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination and Discipline, § 60.04 (Matthew Bender)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 1997) Public Policy Violations, §§ 5.5-5.70

21 California Forms of Pleading and Practice, Ch. 249, Employment Law: Termination and Discipline, §§ 249.12, 249.50-249.52 (Matthew Bender)

10 California Points and Authorities, Ch. 100, Wrongful Termination and Discipline, Forms 40-46 (Matthew Bender)

Bancroft-Whitney's Cal. Civil Practice: Employment Litigation (1993) §§ 6:22-6:24

(New September 2003)