By now Oklahoma employers are, or should be, well aware of the public policy exception to at will employment. The public policy exception, also known as a Burk tort after the 1989 case first recognizing the exception, Burk v. K-mart Corp., has previously been described by the Oklahoma Supreme Court as an exception to be applied only “in a narrow class of cases in which the discharge of an employee is contrary to the clear mandate of public policy as articulated by constitutional, statutory, or decisional law”. The Supreme Court later expanded the tort to include a public policy found in a “federal constitutional provision that prescribes a norm of conduct for Oklahoma”. Still, the Supreme Court has always said the exception is to be “tightly circumscribed”.

Donald Moore worked as a licensed practical nurse for Warr Acres Nursing Center. He had a fairly lengthy disciplinary record for the 10 months he had worked there, including exhibiting rebellious and belligerent behavior. (The job at Warr Acres was his seventh in seven years). He got ill with the flu while at work one day, and, after vomiting, was sent home. He went to his doctor and got a note taking him off work three days due to his illness. When he went back to work three days later with his doctor’s note he saw he was taken off that week’s work schedule. He was fired two days later.

Moore sued Warr Acres, alleging it violated Oklahoma’s public policy for firing him for not being at work while he was sick with the flu. Ordinarily, to support his claim Moore would have to point to a public policy goal found in Oklahoma’s Constitution, statutes, or caselaw, or a federal constitutional provision. Moore pointed to a prior Supreme Court decision, Silver v. CPC-Sherwood Manor, and public health codes found in Oklahoma Department of Health regulations. In Silver the Supreme Court held that a cook for a nursing home who was fired when she got sick and went to the emergency room stated a cause of action for wrongful termination in violation of Oklahoma’s public policy. But, the cook in Silver pointed to an Oklahoma statute as establishing the public policy, not an administrative regulation. The trial court granted summary judgment to Warr Acres, holding there was no public policy preventing the termination of Moore.

The Supreme Court reversed. The majority’s opinion points to an Oklahoma constitutional provision which directs the Legislature to create a board of health, and to designate agency functions. Because there are health department regulations “which were statutorily mandated “that cover infection control and require nursing homes to have a safe and sanitary environment, the majority concluded: “Clearly, it cannot be said the [sic] there are not constitutional, statutory or caselaw public policy manifestations which would prohibit a registered nurse from working with the flu.”

To be sure, the majority acknowledged the other problems with Moore’s disciplinary record which would have justified his termination. But the Court held that whether the reason for his termination was failing to work while he had the flu or was because of these other disciplinary problems was for a jury to decide, not the trial court on summary judgment.

Moore is the first Oklahoma case to hold that a public policy exception to at will employment can be rooted in Oklahoma administrative regulations. As the dissenting Justice notes, “including administrative rules within the public policy exception greatly expands the Burk tort, placing a greater burden on employers who must search through those rules to determine whether termination of an employee will be against public policy.” And forcing employers to prove good cause existed to terminate an employee drives up the cost of litigating these cases because they will be difficult to decide on summary judgment and most likely will have to be resolved at trial.

By Jon E. Brightmire, jbrightmire@dsda.com