Green

I concur in the judgment and in the overruling of this court’s decision in Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083 [ 4 Cal.Rptr.2d 874 , 824 P.2d 680 ] (Gantt) insofar as it held that a cause of action for wrongful termination in violation of public policy may not be based on a public policy expressed in a validly enacted regulation, but only on a public policy articulated in a statutory or constitutional provision. For the reasons stated in my concurring and dissenting opinion in Gantt (id. at p. *91 1101), I remain of the view that a discharged employee should be permitted to recover tort damages for wrongful termination whenever the employer’s action in discharging the employee violated a fundamental public policy delineated in existing law, regardless of the source of that law, including fundamental public policies delineated in administrative regulations and judicial decisions.

I respectfully dissent.

For the past number of years, this court strove to contribute to a stable employment environment in California by holding that the public policy exception to the statutory right of employers to terminate employment at will (Lab. Code, § 2922 1 ) was a narrow one, dependent upon those fundamental public policies delineated in constitutional and statutory provisions. Today, the majority abruptly change course and dramatically expand the contours of the so-called “Tameny” claim (see Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 [ 164 Cal.Rptr. 839 , 610 P.2d 1330 , 9 A.L.R.4th 314 ]) to include public policies supposedly expressed in statutorily authorized administrative regulations. While this, in itself, raises significant concerns of notice and burden to employers given the vast number of such regulations, what is particularly alarming about today’s decision is that a fired employee may assert the public policy exception based upon administrative regulations that do not even apply to the employer but instead regulate the conduct of entities doing business with the employer. Not surprisingly, the majority are unable to articulate any meaningful…

I dissent.

I

“Because air safety ranks somewhere in pecking order between motherhood and the American flag, it would be easy to concur fully in the majority opinion.” (F.A.A. v. Landy (2d Cir. 1983) 705 F.2d 624, 637 (conc. and dis. opn. of Van Graafeiland, J.).) This case, however, is not about whether air safety is a matter of fundamental public policy. Rather, it concerns maintaining rational contours for the judicially created exception to the statutory principle of at-will employment. (Lab. Code, § 2922; see generally, Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 [ 164 Cal.Rptr. 839 , 610 P.2d 1330 , 9 A.L.R.4th 314 ] (Tameny).)

With legerdemain Harry Houdini would envy, the majority summarily dispatches recent efforts by this court to contain the “potent remedy” of tortious wrongful termination actions within workable confines. (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090 [ 4 Cal.Rptr.2d 874 , 824 P.2d 680 ] (Gantt).) Without principled explanation or justification, it dispenses with a series of limitations imposed in Gantt, supra, Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238 [ 32 Cal.Rptr.2d 223 , 876 P.2d 1022 ] (Turner), and Jennings v.…

Nemecek & Cole, Jonathan B. Cole, Sherman Oaks, Scott C. Pape and Craig G. Staub, Santa Monica, or Defendant and Respondent.

Latham & Watkins, Wayne S. Flick and M. Michelle Alvarez, Los Angeles, as Amicus Curiae on behalf of Defendant and Respondent.

CHIN, Justice.

May administrative regulations be a source of fundamental public policy that limits an employer's right to discharge an otherwise at-will employee? Although our Legislature has determined that an employment contract is generally terminable at either party's will (Lab.Code, § 2922), [1] we have created a narrow exception to this rule by recognizing that an employer's right to discharge an at-will employee is subject to limits that fundamental public policy imposes. ( Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172 , 164 Cal.Rptr. 839 , 610 P.2d 1330 ( Tameny ).) In Tameny , we drew from Petermann v. International Brotherhood of Teamsters (1959) 174 Cal.App.2d 184 , 344 P.2d 25 ( Petermann ) to hold that at-will employees may recover tort damages from their employers if they can show they were discharged in contravention of fundamental public policy. ( Tameny, supra, 27 Cal.3d at p. 177 , 164 Cal.Rptr. 839…

*71 Opinion

May administrative regulations be a source of fundamental public policy that limits an employer’s right to discharge an otherwise at-will employee? Although our Legislature has determined that an emplovment contract is generally terminable at either-party’s will (Lab. Code, § 2922), 1 we have created a narrow exception to this ..rule, by-recognizing that an employer’s right to discharge an at-will employee is subject to limits that fundamental public policy imposes. (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172 [ 164 Cal.Rptr. 839 , 610 P.2d 1330 , 9 A.L.R.4th 314 ] (Tameny).) In Tameny , we drew from Petermann v. International Brotherhood of Teamsters (1959) 174 Cal.App.2d 184 [ 344 P.2d 25 ] (Petermann) to hold that at-will employees may recover tort damages from their employers if they can show they were discharged in contravention of fundamental public policy. (Tameny, supra, 27 Cal.3d at p. 177 .) Both Tameny and Petermann relied on substantial public policy concerns to limit the employer’s discharge right, and subsequent cases have recognized similarly narrow public policy violations for discriminatory or retaliatory termination. (Tameny, supra, 27…