Oklahoma is at an “at-will” employment state. In general, this means that “an employer may discharge an employee for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong.” See Burk v. K-Mart Corp., 1989 OK 22, ¶5, 770 P.2d 24. However, the Court has recognized exceptions to this rule when the termination is “in contravention of a clear mandate of public policy.” Id. at ¶17. In the recent case of Moore v. Warr Acres Nursing Home Center, LLC, 2016 OK 28, the Court recognized a Burk tort for terminating an employee of a nursing facility after the employee allegedly called in sick with influenza. The Court held that a clear public policy exists that would prevent a nursing home employer from terminating an employee solely because the employee had influenza. (The Court based this public policy on the “constitution, the statutes, the regulations approved by Congress and the Oklahoma Legislature, and the Nursing Center’s rules, regulations and handbook.”) The Court remanded for a jury trial because fact questions remained over whether this was the true basis for the employee’s termination.
As the dissent notes, the case is probably the most significant because it allows a “public policy” tort to be based on administrative rules/regulations: “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.” (Dissent at ¶13).Share This