Rohrer v. Oswego Cove, LLC is the latest case to address whether a common law wrongful discharge claim is preempted by statute. The issue in the case was whether the action alleged by the plaintiff – seeking out legal advice about her employment – fell within the scope of any statute.
The plaintiff worked as an assistant manager for an apartment rental company. She alleged that an unknown individual repeatedly called the leasing office and harassed the plaintiff by asking inappropriate questions and, during one of the calls, “made masturbation sounds.” The plaintiff reported the unsolicited calls to the defendant, and the defendant “laughed off” the situation. When no action was taken by the plaintiff's employer, she sought legal advice from an attorney about the alleged harassment. The plaintiff claims that her employer was “upset” that she had sought legal advice from an attorney and, shortly thereafter, the plaintiff's employment with the defendant ended for unknown reasons.
Among other claims, the plaintiff filed a common law claim for wrongful discharge based on allegations that the defendant “retaliated and discriminated” against the plaintiff, “thereby interfering with an important societal obligation and/or terminated [the plaintiff] while she pursued important rights related to her role as an employee, including seeking legal counsel.
In turn, the employer filed a motion to dismiss the plaintiff's wrongful discharge claim, arguing that it was superseded by ORS 659A.199 – Oregon's whistleblower statute. The trial court granted the employer's motion and dismissed the claim.
On March 3, 2021, the Oregon Court of Appeals reversed the lower court's decision and made a distinction between retaliation for reporting unlawful activity, which could be protected under Oregon's whistleblower laws, and retaliation for seeking legal counsel, which has no specific statutory protection. Because the plaintiff alleged that her employer retaliated against her for seeking legal counsel, and not for reporting what she believed was illegal conduct, the court of appeals allowed the plaintiff's claims to move forward.
Takeaways: Every time an employee says “I am going to call my attorney,” it is important for employers and their counsel to consider whether the employee has engaged in a legally protected activity. Determine who knew of this statement, when they were uttered in relation to an adverse action, and, most importantly, the context of the statements.
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