Wrongful Termination in Oregon - An Overview

As employment attorneys, we routinely hear from Oregon employees who suspect they may have been wrongfully terminated. This article explains what wrongful termination means in Oregon with citations and links to some relevant primary sources of authority.

Disclaimer: Even the most clear cut wrongful termination cases tend to be complex legal matters. As you will read below, the reality of employment law matters is that they involve an overlapping and sometimes contradictory set of state and federal laws, rules, and regulations. Wrongful termination claims can have critically short deadlines and strict procedural prerequisites. Please do not rely on anything you read on the internet in making legal decisions or determining legal strategy in a wrongful termination case. While it's always good to educate yourself, wrongful termination cases are not a place for DIY legal work.

If after reading this article you suspect an employer may be liable for a wrongful termination, I strongly recommend contacting an attorney that specializes in Oregon employment law. Wrongful termination cases are often contingent fee cases, which means that employees may not need to pay out of pocket for attorney fees. To read more about contacting us about a case, please click here. You may also contact the Oregon State Bar Lawyer Referral Service for referrals to other attorneys who handle wrongful termination cases.

Oregon's At-Will Employment Doctrine

In order to understand wrongful termination, it is first necessary to understand the at-will employment doctrine. Oregon, like all states except Montana, follows the at will employment doctrine. “[T]he general rule is that an employer may discharge an employee at any time and for any reason, absent a contractual, statutory, or constitutional requirement to the contrary.” Cocchiara v. Lithia Motors, Inc., 353 Or 282, 290 (2013) quoting Washburn v. Columbia Forest Products, Inc., 340 Or 469, 475 (2006).

Therefore, as explained in further detail below, wrongful termination cases in Oregon must typically be based on one of more of the following theories: (1) breach of a written or oral contract, (2) violation of specific statutes (e.g., discrimination or retaliation based on protected class or protected activities), or (3) violation of tort law, constitutional law, or other common law theories recognized by courts.

Legal Bases for Oregon Wrongful Termination Claims

Below is a partial list of situations in which employees may be able to assert wrongful termination claims against employers. It is worth noting that in this context, I use the term wrongful termination as laypeople tend to use it – an employer’s unlawful termination of an employee’s employment. Under Oregon law, “wrongful termination” actually has a narrower and more specific technical meaning (an interstitial tort based on public policy).

Breach of Contract: Employees who are terminated in violation of an enforceable written or oral employment contract may be able to assert a wrongful termination claim against a former employer. The employee will need to establish the existence of employment contract that removes the employment relationship from at-will status.

Wrongful termination cases based on a breach of contract typically involve contracts that specifically promise employment for a defined period. Some cases arise where an employer fails to provide proper notice under a contract's termination provisions. Violations of employee handbooks and policies alone do not usually suffice as a basis for wrongful termination claims.

Protected Classes: An employer cannot lawfully fire an individual because he or she belongs to a protected class. See, e.g., ORS 659A.030(1)(a)-(e); 42 U.S.C. § 2000e-2; 29 U.S.C. § 623. Protected classes include race, color, national origin, gender, sexual preference, marital status, pregnancy, religion, age, disability, and crime victim status.

Note that the definitions of protected classes can vary between Oregon and federal law. For example, the federal Age Discrimination and Employment Act is "limited to individuals who are at least 40 years of age." 29 U.S.C. § 631(a). Contrast this with Oregon age discrimination law, which protects all employees ages 18 or older. ORS 659A.030(1)(a)-(e)(prohibiting discrimination based on "age if the individual is 18 years of age or older").

An employee must be able to establish a causal link between membership in a protected class and the employer’s adverse action. In other words, the law does not prohibit employers from firing an employee who happens to belong to a protected class if the employee cannot prove that his or her membership in the protected class was a substantial factor in the employer's decision.

Protected Activity: Both Oregon and federal law protect employees who have engaged in protected activity. Protected activities are defined by statute or regulation and include, but are not limited to: 
Tort Claims: Employees may also have rights against under the common law or constitution. Covering all of these potential claims is beyond the scope of this article because these claims tend to be highly specific and, in many cases, pleaded in creative ways. However, below are a couple examples of relatively recent and innovative tort claims arising from the employment relationship.

In Cocchiara v. Lithia Motors, Inc., 353 Or 282 (2013), the Oregon Supreme Court allowed an employee’s legal claims for fraudulent misrepresentation and promissory estoppel to proceed where the plaintiff lost his job as the result of an employer's misrepresentations. Cocchiara is a noteworthy decision because it clarified a previous case - Slate v. Saxon, Marquoit, Bertoni & Todd, 166 Or App 1 (2000) - that Oregon employers had commonly cited for the proposition that the at-will employment doctrine forecloses fraud in hiring cases.

One example of a tort claim related an employment relationship is Bernard v. S.B., 270 Or App 710 (2015). In Bernard, the Oregon Court of Appeals considered an employee’s claims for intentional interference with economic relations, misrepresentation, and injunctive relief against a former employer that tried enforce a non-competition agreement against the employee and her new employer. In effect, the employee alleged that her former employer wrongfully interfered with her new employment by attempting to leverage a non-competition agreement that did not comply with Oregon law. While the court ultimately rejected the claims, the opinion in Bernard implies that the claims may be viable under different circumstances. 

Burden of Proof in Oregon Wrongful Termination Cases

An employee who asserts a wrongful termination claim will have the burden to prove their case with admissible evidence. Employees are typically required to prove that the stated illegal reason for the termination was a “but for” cause. See Oregon Uniform Civil Jury Instruction 59A.03 (“A substantial factor is one that made a difference in an employment decision; that is, the decision would not have been made without it. It need not be the only factor.”). 

Employers in wrongful termination cases almost always argue a “legitimate nondiscriminatory” motive for the termination, such as downsizing/reorganization, employee misconduct or poor performance, etc. The strength or weakness of any wrongful termination case depends on a variety of factors and every wrongful termination case is unique.

Remedies for Wrongful Terminations

The types of damages an employee will be able to recover will vary widely depending on the exact nature of the legal claims an employee brings. Employees may qualify for a broad range of remedies, including economic damages, noneconomic damages, punitive damages, attorney fees, and costs. See, e.g., ORS 659A.885(1)-(3). Some claims however, only provide remedies for lost wages and do not provide for recovery of noneconomic damages (e.g., Oregon Family Leave Act).

Wage loss can mount quickly in wrongful termination cases. Employees have a duty to minimize damages by searching for and securing replacement work as soon as possible. See, e.g., Le Roux v. Cent. Oregon Truck Co., Inc., 6:17-CV-00533-JR, 2018 WL 3186944, at *8 (D Or June 28, 2018)("The mitigation of damages doctrine prevents an injured party from recovering damages he could have avoided if the injured party had made reasonable efforts after the wrong was committed. See Jackson v. Shell Oil Company, 702 F.2d 197, 201–02 (9th Cir. 1983)")

Procedure

Employees who wish to assert a wrongful termination claim against an employer have a variety of options for seeking recourse. ORS 659A.870. The options available, the appropriate venue, and perhaps most importantly the time limitations for a particular employee to bring an action will vary depending on the particular case.

Employees should seek counsel and act immediately because wrongful termination cases often involve important and often very short time deadlines. For example, compare ORS 659A.875(2) (imposing 90-day time limitation in certain Oregon wrongful termination cases), ORS 659A.875 (imposing one year statute of limitations in certain Oregon wrongful termination cases), and 29 U.S.C. § 2617(c) (imposing two or three year statute of limitations for Family Medical Leave Act claims, depending on nature of employer's conduct).

Category: Torts