100 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 5.4.4 Other wrongful discharge claims California courts have also permitted tort claims to challenge employment actions that conflict with public policy, without regard to whether the employee has engaged in protected activity, such as where the employee allegedly was fired for reasons forbidden by an employment discrimination statute, even if the plaintiff has failed to exhaust the administrative remedies that the statute provides and even if the limitations period for filing suit under that statute has expired,193 or to avoid paying commissions, in violation of the Labor Code.194 In yet another extension of employer liability, the Court of Appeal held that a low-wage employee who quit his job could sue for constructive discharge for failing to reimburse his auto expenses. The Court of Appeal reasoned that because the employer’s failure to reimburse expenses effectively reduced the employee’s pay below the minimum wage, the employer arguably created an intolerable work condition for the employee that justified his decision to quit.195 “Pay the union boss or be fired” extortion. The Court of Appeal allowed a wrongful termination claim to proceed against a union that allegedly fired the plaintiff for failing to meet demands to financially support the union leaders’ election campaigns. The Court of Appeal reasoned that a union demand to pay or be fired could qualify as attempted extortion, in that Penal Code section 518(a) defines extortion as obtaining property through “wrongful use of force or fear,” and in that Penal Code section 519 explains that “fear” for purposes of extortion “may be induced by a threat to inflict unlawful injury to the person or property of the individual.” The Court of Appeal concluded that “property” in this context may include the victim’s employment, so the plaintiff could plausibly claim he had been terminated in violation of public policy.196 5.4.5 Wrongful employer actions short of termination California has extended the public policy tort to “wrongful demotion,” permitting an employee to sue for a disciplinary demotion imposed for reasons contrary to public policy.197 The Court of Appeal, in a semi-heroic refusal to yield to the temptation of judicial activism, has declined to create a tort for a wrongful failure to renew an employment contract, reasoning that there is no “termination” of an employment that ends by the terms of the employment contract.198 This employer victory was limited, however, because the Court of Appeal also noted that the employee could pursue a statutory retaliation claim based on the same allegations (a firing in retaliation for raising workplace safety concerns), because the non-renewal, while not a “termination,” could be an “adverse employment action.”199 Moreover, although the facts of this case did not raise the issue, a plaintiff in some other case might pursue a “wrongful termination” claim if the employment contract had an automatic renewal clause or if the employer permitted the employee to work past the contractually set termination date. 5.4.6 Protection of registered sex offenders—Megan’s Law California’s Megan’s Law200 calls for the Department of Justice to publicize, via a website,201 the whereabouts of sex offenders. Megan’s Law is named after a seven-year-old girl who was raped and killed by a known child molester who had moved close to Megan’s family without the family’s knowledge. That tragedy inspired the family to lobby for laws enabling people to know where sex offenders live, so that people may better protect their children. Many states now have a Megan’s Law.
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