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Warnek v. Abb Combustion Engineering3/4/1999
efits as the majority suggests. In our modern economic system, workers are mobile, working in a number of jurisdictions, often for the same employer. We can certainly take cognizance of the fact a number of workers in Washington may be employed in neighboring states. For example, it is common for workers in southwest Washington to drive across the Columbia River and work in the Portland metropolitan area. It is also common for workers of multistate corporations like the Boeing Company to work at a number of its facilities around the United States, and perhaps even around the world.
There is no principled basis for differentiating between the presentation of a worker compensation claim in another state or under the law of another jurisdiction (e.g., Longshore and Harbor Workers' Compensation Act, 33 U.S.C. sec.sec. 901 - 950) and the presentation of a claim under Title RCW 51 for purposes of a common law cause of action for retaliatory discharge in violation of public policy. If a worker submits a legitimate industrial insurance claim in another jurisdiction and an employer in Washington discriminates against that worker for submission of such a claim, Washington public policy is offended. The broad public policy of Washington law expressed in RCW 51.48.025 and Wilmot exists to forestall discrimination against workers based on the presentation of legitimate worker compensation claims for on-the-job injuries, wherever those injuries may occur.
To hold otherwise impairs the great compromise of Washington's Industrial Insurance Act (IIA) which required workers to forego their common law rights in court in favor of a swift and certain no-fault remedy for industrial injuries. In turn, employers were the beneficiaries of immunity from suit. As we said so trenchantly in Wilmot, "The balancing of interests which the IIA represents would be intolerably undermined could an employer circumvent the act by the threat of or actual discharge of the worker, or by other discrimination contemplated by the statute." Wilmot, 118 Wn.2d at 66. The facts of Wilmot concerned a retaliatory discharge, but the reasoning of our decision, and the policy on which we based our holding, apply with equal force to the present situation, where the facts concern a failure to reemploy in alleged retaliation for the filing of a worker compensation claim. The vice we held compensable in Wilmot was retaliation by an employer against a worker for filing a worker compensation claim. We held such retaliation contrary to the public policy of Washington. In establishing a cause of action in this case, we would merely be applying Wilmot, not extending Wilmot.
As to the second issue raised by the majority, this is arguably a case of retaliatory discharge. We have previously expressed reluctance to extend the common law cause of action for retaliatory discharge in violation of public policy to other forms of employment discrimination. See, e.g., White v. State, 131 Wn.2d 1, 929 P.2d 396 (1997) (refusing to recognize tort of wrongful transfer as against public policy).
But Warnek and Ocampo and ABB are not unknown to one another. This is not a situation where someone is seeking employment for the first time by an employer. In effect, Warnek and Ocampo appear to have had a long-term employment relationship with ABB on a recurring basis. As is the practice in many other trades, Warnek and Ocampo were referred by their Union to various ABB projects around the western United States. They were not "new hires" in the ordinary sense when they were assigned to those jobs. Indeed, ABB's letter to the Union on July 17, 1997 acknowledges this ongoing relationship by referring to Warnek and Ocampo as "rehires." Warne
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