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Employee fired for reporting child pornography activities of employer stated wrongful discharge claim

June 30th, 2015  |  Ron Miller

You’ve been hired as a personal assistant. You live and work in the employer’s home. The job entails cooking, serving meals, housecleaning, laundry, pet care, yard work, grocery shopping, and organizing the defendant’s personal affairs—including reviewing his email. And therein lies the problem. While reviewing your employer’s email, you find an email that was linked to a child-pornography website. When you report your findings to the employer his attitude is rather cavalier.

Child pornography. In the weeks following that discovery, you frequently encountered sexual depictions of children. The employer also begins to view slideshows of nude underage boys engaged in sex acts in your presence, and he even requests that you view the images. On other occasions, the employer would view child pornography with friends, upload pictures of young boys taken by him and acquaintances, and received packaging that contained child pornography. As a victim of childhood sexual abuse you protest to the employer that the display of child of pornography was upsetting. The final straw, you discover that the employer used an internet account in your name, and naturally fear that you might get caught up in the employer’s criminal activities. Still, your complaints to the employer go unheeded.

That was the predicament that the employee in McManus v. Auchincloss found himself. Several weeks after his discovery, the employee took all the child pornography he could find to his attorney, who sent the employer a cease and desist demand, and threatened to go to the police if his behavior persisted. Ultimately, the employee reported the employer’s activities to the police, and assisted in an investigation. The employer was indicted and arrested. When he learned of the employee’s role in the investigation he terminated his employment and barred him from the property.

Police investigation. Several weeks later, the employee took all the child pornography he could find to his attorney who then sent the defendant a cease and desist demand, and threatened to go to the police if the employer’s behavior persisted. Ultimately, the employee reported the defendant’s activities to the police, and assisted in an investigation. The employer was indicted and arrested. When he learned of the employee’s role in the investigation he terminated his employment and barred him from the property. The employee was prevented from retrieving possessions from the residence.

Wrongful discharge. After the employee filed suit, a trial court granted summary judgment in favor of the employer against the employee’s claim of wrongful discharge. Specifically, the trial court concluded that the employee could not prevail under the public-duty exception to at-will employment because he could not prove one element of his common-law wrongful discharge claim, namely the public duty element. This appeal followed.

The trial court reached its conclusion based on the statutory definition of employee in ORS 659A.001(3), which excludes domestic service workers. On appeal, the employee did not dispute that he worked in the domestic service of the employer. Rather, he argued that the statutory definition did not apply to his wrongful discharge claim because he brought his claim under the important-public-duty exception, not the private-employee whistleblower statute.

Possession of child pornography. Citing the private-employee whistleblower statute, ORS 659A.230, the employee argued that the public policy of Oregon encouraged his good-faith report of the employer’s possession and display of child pornography and, consequently, that his actions fulfilled an important public duty protected by the common-law public-duty exception to at-will employment.

The appeals court agreed with the employee that the legislative history of the private-employee-whistleblower statute was useful to its analysis. It concluded that the legislative history of ORS 659A.230 intended the term “employee” to include all employees. Thus, the legislation was to encourage all employees to report crime, to cooperate with law enforcement, and to testify in judicial proceedings, and the defendant identified no contrary legislative history.

Public duty. As a result, the appeals court determined that the legislature expressed a public policy to encourage all employees with a good-faith belief that their employer had committed a crime involving child abuse to report that belief to law enforcement. Thus, because the employee alleged his wrongful discharge claim under the common-law public duty exception to at-will employment, the trial court erred when it granted summary judgment in the employer’s favor on the basis that the employee did not meet the statutory definition of “employee” contained in ORS 659A.001(3).

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