On March 3, 2021, in Rohrer v. Oswego Cove, LLC, the Oregon Court of Appeals reversed the lower court’s dismissal of an employee’s common-law wrongful discharge claim for seeking legal advice about her employment. The court concluded that because the employee’s alleged protected activity did not entitle to her to an adequate statutory remedy under Oregon’s whistleblower statute—ORS 659A.199—she could assert a common-law wrongful discharge claim instead.  

Background

The plaintiff worked as an assistant manager for the defendant, an apartment rental company.  While the plaintiff was employed, an individual repeatedly called the leasing office and “harassed” the plaintiff by asking inappropriate questions and making “masturbation sounds.”  The plaintiff reported the phone calls, and her employer allegedly “laughed off” the situation.  The plaintiff complained to her supervisor that the employer’s inaction compromised her safety and stated her view that it was illegal for an employer to allow its employees to be subjected to such calls.  The plaintiff also reached out to an attorney to procure legal advice on the stalking calls. The plaintiff contends her employer was upset that the plaintiff sought legal advice from an attorney and terminated the plaintiff’s employment shortly thereafter.

The plaintiff filed suit, alleging, among other things, a common-law claim for wrongful discharge.  Specifically, she alleged that her employer “retaliated and discriminated against [her], thereby interfering with an important societal obligation and/or terminated [her employment] while she pursued important rights related to her role as an employee, including but not limited to seeking legal counsel.”

The employer filed a motion to dismiss the common-law wrongful discharge claim, arguing that it was superseded by Oregon’s whistleblower statute (ORS 659A.199), which affords a statutory remedy for an employee who “has in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation.” The trial court granted the employer’s motion, dismissing the claim.

Oregon Court of Appeals’ Decision

The plaintiff appealed the trial court’s dismissal of the claim.  The plaintiff acknowledged that “[a] common law wrongful termination claim will not exist if an available and adequate statutory remedy already exists,” but argued that she had not alleged that she was retaliated against for reporting a violation of a state or federal law, rule or regulation, but rather because she had reached out to an attorney to procure legal advice on the stalking calls.

In reversing the trial court’s order, the court of appeals distinguished between a number of Oregon retaliation cases that analyze the applicability of common-law wrongful discharge claims.  The court of appeals disagreed with the employer’s general conclusion that common-law wrongful discharge claims are not recognized under Oregon law, given that some retaliation claims are not premised on an allegation that the plaintiff “reported” unlawful activity.  Because the plaintiff alleged that her employer retaliated against her for seeking legal counsel, and not for reporting what she believed was illegal conduct, ORS 659A.199 did not provide her with an adequate statutory remedy.  The court noted that the employer had not identified any other statutory remedy for such a claim. As a result, the court of appeals reversed and remanded the decision.

Practical Effect

The court of appeals’ Rohrer decision emphasizes the need for employers and their counsel to consider the specific allegations underlying an employee’s retaliation claim to determine whether the employee may be entitled to remedies under common law.  If the employee bases their retaliation claim based on their “report” of conduct that they in good faith believed constituted a violation of a law, rule, or regulation, then they are unlikely to be entitled to such a remedy.  On the other hand, if the alleged protected activity is not specifically addressed in ORS 659A.199, i.e., there was no “report,” or any other statutory remedy, then defending a common law claim may be necessary.