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Employment Law Survey; providing a general overview of Oklahoma’s labor and employment law.

December 3, 2019
By Shannon Davis

1. Is Oklahoma generally an employment-at-will state?

Yes.

“Where an employee has no written contract, [1] and employment is for an indefinite term, it is terminable at will by either party at any time with or without cause.” Corder v. Okla. Med. Research Found., 1999 OK CIV APP 33, ¶ 6, 980 P.2d 1122, 1124-25.

“Oklahoma adheres to the so-called American employment-at-will doctrine.  Employers are free to discharge at-will employees in good or bad faith, with or without cause.  At-will employees do not have a cognizable cause of action for wrongful discharge unless the claim falls within the narrow class of complaints in which the discharge may be characterized as contrary to a clear mandate of public policy and violates some law articulated in state constitutional, statutory or decisional sources.”  See, Darrow v. Integris Health, Inc., 2008 OK 1, 176 P.3d 1204, 1210.

[1] “[A]n employee handbook may form the basis of an implied contract between an employer and its employees if four traditional contract requirements exist: (1) competent parties, (2) consent, (3) a legal object and (4) consideration.” Russell v. Bd. of Cty. Comm’rs, 1997 OK 80, ¶ 23, 952 P.2d 492, 501-02.  Moreover, an employer may impose duties upon itself, as related to its employees, by adopting policies and procedures for the termination of employees. Breshears v. Moore, 1990 OK CIV APP 8, ¶ 15, 792 P.2d 91, 93-94. See, item 5, below.

2. Are there any statutory exceptions to the employment-at-will doctrine in Oklahoma? Summarize (include code citations if statutory)

Yes.

    • Protection of Labor. Okla. Stat. tit. 40, § 199 generally provides that it is unlawful for an employer to discharge (or penalize or discriminate) against an employee who files a complaint with the employer or the Commissioner of Labor, or institutes a proceeding or investigation, under §§ 71 through 198.2 of title 40.  Those sections involve Employment of Children, Boiler and Pressure Vessels, The Alternative Fuels Technician Certification Act, Protection of Labor, Track Motor Cars, Contracts Involving State Funds, and Minimum Wages.  Under § 199 it is unlawful for an Oklahoma employer to discharge an employee who testifies or is about to testify in any investigation or proceeding under title 40 (Labor).
    • Worker’s Compensation. Okla. Stat. tit. 85A, § 7 prohibits an employer from retaliating against an employee who has in good faith: (1) filed a worker’s compensation claim; (2) retained a lawyer for representation regarding a worker’s compensation claim; (3) Instituted or caused to be instituted any proceeding under the provisions of the worker’s compensation act; or, (4) testified or is about to testify in any proceeding under the provisions of the worker’s compensation act.
    • Medical Marijuana. Okla. Stat. tit. 63, § 425(B) prohibits an employer from discriminating against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon the person’s status as a medical marijuana license holder, or the results of a drug test showing positive for marijuana or its components, unless a failure to do so would cause an employer the potential to lose a monetary or licensing-related benefit under federal law or regulations.

An employer may take action against a holder of a medical marijuana license if the holder uses or possesses marijuana while in his or her place of employment or during the hours of employment.

3. Are there any public policy exceptions to the employment-at-will doctrine? If yes, cite code or primary case citations, summarize rights, discuss remedies and damages, attorney’s fees and whether jury trial is available.

Yes, Oklahoma recognizes a public policy exception to the employment-at-will doctrine.  The public policy exception was introduced in Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24.  Oklahoma courts have discussed the exception since and further explained the exception in Darrow v. Integris Health, Inc., 2008 OK 1, 176 P.3d 1204.  The court stated at 1210,

This exception was introduced into Oklahoma’s legal system by Burk’s singular modification of the common-law employment-at-will doctrine.  The exception’s application should be tightly circumscribed.  Circumstances in which this actionable “Burk tort” is said to arise are where an employee is discharged for (1) refusing to violate an established and well-defined public policy or (2) performing some act consistent with a clear and compelling public policy.  The implication of a sufficiently discernible public policy presents a question of law to be resolved either at nisi prius or ultimately by an appellate court.

See also, Hinson v. Cameron, 1987 OK 49, 742 P.2d 549; Griffin v. Mullinix, 1997 OK 120, 947 P.2d 177, 179 (federal OSHA statute not a statement of Oklahoma public policy), “that a federal statute cannot serve as an articulation of Oklahoma public policy, absent [support in] a specific Oklahoma decision, [state] statute or [state] constitutional provision.”

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Attorney Shannon Davis
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