Holding the Phone: Employees Can File Common Law Wrongful Dismissals in Oregon for Seeking Legal Advice About Their Jobs | Small



March 3, 2021, at Rohrer v. Oswego Cove, LLC, the Oregon Court of Appeal overturned the lower court’s dismissal of an employee’s common law wrongful dismissal claim for seeking legal advice about her employment. The court found that because the employee’s allegedly protected activity did not entitle her to adequate legal recourse under the Oregon Whistleblower Act – ORS 659A.199 – she could instead argue a request for wrongful dismissal at common law.


The plaintiff worked as an assistant manager for the defendant, an apartment rental company. While the Applicant was employed, one person repeatedly called the rental office and “harassed” the Applicant by asking inappropriate questions and making “masturbation noises”. The complainant reported the phone calls and her employer allegedly “blew up” the situation. The complainant complained to her supervisor that the employer’s inaction compromised her safety and stated that she believed it was illegal for an employer to allow its employees to be subjected to such calls. The claimant also contacted a lawyer for legal advice on the criminal harassment calls. The complainant alleged that her employer was upset that the complainant had sought legal advice from a lawyer and had terminated her employment shortly thereafter.

The plaintiff brought an action alleging, among other things, a common law claim for wrongful dismissal. Specifically, she alleged that her employer “retaliated against and discriminated against [her], thus interfering with an important societal obligation and / or terminated [her employment] while pursuing important rights related to her role as an employee, including, but not limited to, the search for a lawyer. “

The employer filed a motion to dismiss the common law wrongful dismissal request, arguing that it was replaced by the Oregon Whistleblower Act (ORS 659A.199), which provides legal recourse to an employee who “has in good faith reported information that the employee believes to be evidence of a violation of any state or federal law, rule or regulation. The court of first instance allowed the employer’s request, dismissing the request.

Oregon Court of Appeal Decision

The claimant appealed against the rejection of the claim by the court of first instance. The applicant acknowledged that “[a] the common law wrongful dismissal complaint will not exist if there is already an available and adequate legal remedy ”, but argued that she had not alleged that she suffered retaliation for reporting a breach of employment. ‘a state or federal law, rule or regulation, but rather because she had contacted a lawyer for legal advice on criminal harassment appeals.

In overturning the trial court’s order, the appeals court distinguished between a number of Oregon retaliatory cases that analyze the applicability of wrongful release requests at common law. The Court of Appeal disagreed with the employer’s general conclusion that common law claims for wrongful dismissal are not recognized under Oregon law, since some claims in retaliation cases are not based on an allegation that the complainant “reported” illegal activity. As the complainant alleged that her employer retaliated against her for seeking a lawyer and not for reporting what she believed to be unlawful conduct, RHA 659A.199 did not provide her with a legal remedy. adequate. The court noted that the employer had not identified any other legal recourse for such a claim. As a result, the appeals court overturned and remanded the decision.

Practical effect

Court of Appeal’ Rohrer The ruling emphasizes the need for employers and their lawyers to examine the specific allegations underlying an employee’s claim for retaliation in order to determine whether the employee may be entitled to remedies under the common law. If the employee bases his reprisal complaint on his “report” of conduct that he believes in good faith to constitute a violation of any law, rule or regulation, he is unlikely to be entitled to such recourse. On the other hand, if the alleged protected activity is not specifically addressed in ORS 659A.199, that is to say, there has been no “report” or other statutory remedy, then it may be necessary to defend a common law claim.


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