Green v. Ralee Engineering Co.

BROWN, J.

I dissent.

I

“Because air safety ranks somewhere in pecking order between motherhood and the American flag, it would be easy to concur fully in the majority opinion.” (F.A.A. v. Landy (2d Cir. 1983) 705 F.2d 624, 637 (conc. and dis. opn. of Van Graafeiland, J.).) This case, however, is not about whether air safety is a matter of fundamental public policy. Rather, it concerns maintaining rational contours for the judicially created exception to the statutory principle of at-will employment. (Lab. Code, § 2922; see generally, Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 [ 164 Cal.Rptr. 839 , 610 P.2d 1330 , 9 A.L.R.4th 314 ] (Tameny).)

With legerdemain Harry Houdini would envy, the majority summarily dispatches recent efforts by this court to contain the “potent remedy” of tortious wrongful termination actions within workable confines. (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090 [ 4 Cal.Rptr.2d 874 , 824 P.2d 680 ] (Gantt).) Without principled explanation or justification, it dispenses with a series of limitations imposed in Gantt, supra, Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238 [ 32 Cal.Rptr.2d 223 , 876 P.2d 1022 ] (Turner), and Jennings v. Marralle (1994) 8 Cal.4th 121 [ 32 Cal.Rptr.2d 275 , 876 P.2d 1074 ] {Jennings), and grants courts the unfettered discretion to “mistake their own predilections for public policy which deserves recognition at law.” (Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 297 [ 188 *98 Cal.Rptr. 159 , 35 A.L.R.4th 1015 ].) Under the majority holding, only regulations “that implement an important statutory objective” and “promote a ‘clearly mandated public policy’ ” will qualify as Tameny predicates; and the majority is “confident” the courts will be able to distinguish those that do from those that do not. (Maj. opn., ante, at p. 90.) Yet, the sole criterion for identifying “an important statutory objective” is whether “the statute in question was designed to protect the public or advance some substantial public policy goal.” (Ibid.) One is hard-pressed to formulate a more tautological standard, one which inevitably leaves the courts with ultimate control over both articulation and implementation of public policy. Not only does this result undermine the traditional “due deference to the judgment of the legislative branch” in such matters (Gantt, supra, 1 Cal.4th at p. 1095 ), it conflicts with the notice rationale undergirding Gantt, supra, 1 Cal.4th at page 1095 , Turner, supra, 7 Cal.4th at page 1257 , and especially Jennings, supra, 8 Cal.4th at pages 135-136.

In his dissent, Justice Baxter has cogently detailed many of the critical flaws and failings of the majority opinion. His analysis is compelling, and I fully endorse it. Because his criticisms and observations highlight the increasing disarray in our Tameny jurisprudence, I write further to discuss some of the reasons for our current muddle and to suggest a possible approach to a solution.

II

For the last decade, since Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654 [ 254 Cal.Rptr. 211 , 765 P.2d 373 ] (Foley), this court has struggled to formulate workable limitations on the cause of action for tortious wrongful termination or retaliatory discharge, now eponymically dubbed a Tameny claim. Upon careful analysis, it appears the taproot of our discontent is the Tameny decision itself.

In Tameny, supra, 27 Cal.3d 167 , the plaintiff, alleging both contract and tort causes of action, brought suit after being terminated for refusing “to yield to his employer’s pressure” to engage in acts constituting state and federal antitrust violations. (Id. at pp. 170-171.) The trial court sustained a demurrer to the tort claims. This court reversed on the basis that “an employer’s obligation to refrain from discharging an employee who refuses to commit a criminal act does not depend upon any express or implied ‘ “promise[s] set forth in the [employment] contract” ’ [citation], but rather reflects a duty imposed by law upon all employers in order to implement the fundamental public policies embodied in the state’s penal statutes.” (Id. at p. 176.)

*99 In reaching this conclusion, the court uncritically adopted the holding of Petermann v. International Brotherhood of Teamsters (1959) 174 Cal.App.2d 184 [ 344 P.2d 25 ] (Petermann) and failed to respond to significant objections raised in both the concurrence and the dissent. ( Tameny, supra, 27 Cal.3d at pp. 172-174.) Although Justice Manuel agreed the plaintiff could proceed on his tort claim, he counseled a more measured rationale than “the vague and ill-defined dictates of ‘fundamental public policy,’ ” noting that “the cause of action here in question flows from a clear statutory source— i.e., the provisions of section 2856 of the Labor Code.” 1 ( 27 Cal.3d at p. 179 (conc. opn. of Manuel, J.).) The Tameny majority cited the statute as “additional support for the Petermann ruling” (id. at p. 174, fn. 8), but failed to explain why this was not sufficient to vindicate the plaintiff’s interests without the amorphous reference to public policy.

The majority also failed to rationalize allowing a wrongful termination cause of action in derogation of the statutory principle of at-will employment set forth in Labor Code section 2922. 2 (See Tameny, supra, 27 Cal.3d at p. 180 (dis. opn. of Clark, J.).) Nor did it respond to Justice Clark’s criticism that “[t]oday’s court judgment is a legislative judgment better left to the Legislature where, properly, public policy is declared. The Legislature has spoken [by enacting express exceptions to the at-will employment rule, e.g., former Elections Code section 1655 and Labor Code section 923]; if the system is to work, the Legislature will redeclare its position.” (Id. at pp. 182-183; cf. Gantt, supra, 1 Cal.4th at p. 1095 .)

Three years later, the New York Court of Appeals cited similar reasons for declining to adopt a public policy exception to at-will employment: “Those jurisdictions that have modified the traditional at-will rule appear to have been motivated by conclusions that the freedom of contract underpinnings of the rule have become outdated, that individual employees in the modem work force do not have the bargaining power to negotiate security for the jobs on which they have grown to rely, and that the rule yields harsh results for those employees who do not enjoy the benefits of express contractual limitations on the power of dismissal. Whether these conclusions are supportable or whether for other compelling reasons employers should, as a matter of policy, be held liable to at-will employees discharged in circumstances for which no liability has existed at common law, are issues better left to resolution at the hands of the Legislature. In addition to the fundamental question whether such liability should be recognized in New York, of *100 no less practical importance is the definition of its configuration if it is to be recognized.

“Both of these aspects of the issue, involving perception and declaration of relevant public policy (the underlying determinative consideration with respect to tort liability in general [citations]) are best and more appropriately explored and resolved by the legislative branch of our government. The Legislature has infinitely greater resources and procedural means to discern the public will, to examine the variety of pertinent considerations, to elicit the views of the various segments of the community that would be directly affected and in any event critically interested, and to investigate and anticipate the impact of imposition of such liability. Standards should doubtless be established applicable to the multifarious types of employment and the various circumstances of discharge. If the rule of nonliability for termination of at-will employment is to be tempered, it should be accomplished through a principled statutory scheme, adopted after opportunity for public ventilation, rather than in consequence of judicial resolution of the partisan arguments of individual adversarial litigants.” (Murphy v. American Home Products Corp. (1983) 58 N.Y.2d 293, 301-302 [ 461 N.Y.S.2d 232, 235-236 , 448 N.E.2d 86 ]; see also Martin v. Tapley (Ala. 1978) 360 So.2d 708 ; DeMarco v. Publix Super Markets, Inc. (Fla.Dist.Ct.App. 1978) 360 So.2d 134 , affd. (Fla. 1978) 384 So.2d 1253 ; Jones v. Local 926 of Intern. U. of Oper. Eng. (1981) 159 Ga.App. 693 [ 285 S.E.2d 30 ], revd. on other grounds (1983) 460 U.S. 669 [ 103 S.Ct. 1453 , 75 L.Ed.2d 368 ]; Kelly v. Mississippi Valley Gas Co. (Miss. 1981) 397 So.2d 874 [ 32 A.L.R.4th 1214 ].)

This analysis reflects an understanding that the Legislature is at least as able as the courts to recognize “the arbitrariness of an absolute right to discharge in light of contemporary employment relationships and the incompatibility of such a right to the attainment of a broad range of statutory objectives” (Tameny, supra, 27 Cal.3d at p. 172, fn. 7 ), but better able to respond to the perceived need in an orderly fashion. For example, the New York Court of Appeals noted that—as in California at the time Tameny was decided—the Legislature had already “afforded express statutory protection from firing for engaging in certain protected activities [citations].” (Murphy v. American Home Products Corp., supra, 461 N.Y.S.2d at p. 236, fn. 1 [ 448 N.E.2d at p. 90 ]; cf. former Elec. Code, § 1655, now Elec. Code, § 12312; Lab. Code, §§ 132a, 923; see also Gov. Code, § 12900 et seq.; Lab. Code, § 1102.5.) The court’s observations further reflect an appreciation of the need at the outset to delineate the “configuration” of a public policy exception and to formulate well-defined standards for its application.

As discussed below, the crucial flaw in Tameny was in failing to articulate a rationale for creating an exception to the at-will employment rule. Because *101 the Tameny court justified its adoption of a tortious wrongful termination cause of action only in the most abstract conceptual terms, subsequent cases have had to proceed on a tortuous, ad hoc, and sometimes internally inconsistent basis in attempting to define its parameters, responding in the main to “the partisan arguments of individual adversarial litigants.” (Murphy v. American Home Products Corp., supra, 461 N.Y.S.2d at p. 236 [ 448 N.E.2d at p. 90 ]; compare General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1180 [ 32 Cal.Rptr.2d 1 , 876 P.2d 487 ] [“positive law,” apparently including rules of professional conduct, may be source of public policy] with Gantt, supra, 1 Cal.4th at p. 1095 [claim must be tethered to “statutes and constitutional provisions”]; see also Jennings, supra, 8 Cal.4th 121 [no cause of action if employer not covered by statute]; Turner, supra, 7 Cal.4th 1238 [plaintiff must identify specific statutory provision articulating public policy]; Foley, supra, 47 Cal.3d 654 [statutory predicate must inure to public’s benefit].) Yet in each instance, the exercise has yielded no clearer, more workable result; the court simply creates a patchwork unguided by any principled first cause. Today’s decision perfectly illustrates the confusion produced by this inherent failing in Tameny 3

Ill

To fault the analysis in Tameny is not to say the court reached the wrong result, only that, as Justice Manuel suggested, it should have done so by more modest means. A restrained approach would have been more consistent with the accretive nature of the common law and would have provided a clearer, more enduring rationale upon which to predicate future applications.

This court was not without precedent for developing common law principles in similar circumstances. In Li v. Yellow Cab (1975) 13 Cal.3d 804 [ 119 Cal.Rptr. 858 , 532 P.2d 1226 , 78 A.L.R.3d 393 ] (Li), we adopted the *102 rule of comparative negligence notwithstanding the provision of Civil Code section 1714 codifying the common law rule of contributory negligence. In doing so, the court in Li, unlike in Tameny , undertook a “thorough reexamination of the matter, giving particular attention to the common law and statutory sources of the subject doctrine in this state” to determine both the authority for and propriety of judicial modification. ( 13 Cal.3d at p. 810 .)

Analyzing the legislative perspective and purpose of the 1872 Civil Code, the court explained “it was not the intention of the Legislature in enacting section 1714 of the Civil Code, as well as other sections of that code declarative of the common law, to insulate the matters therein expressed from further judicial development; rather it was the intention of the Legislature to announce and formulate existing common law principles and definitions for purposes of orderly and concise presentation and with a distinct view toward continuing judicial evolution.” (Li, supra, 13 Cal.3d at p. 814 ; see also Civ. Code, §§ 4, 5.) 4 The court had previously undertaken incremental changes in tort law. (e.g., Summers v. Tice (1948) 33 Cal.2d 80, 84-87 [ 199 P.2d 1 , 5 A.L.R.2d 91 ]; Ybarra v. Spangard (1944) 25 Cal.2d 486, 489-492 [ 154 P.2d 687 , 162 A.L.R. 1258 ]) and found no reason to believe “that the general language of section 1714 dealing with defensive considerations should be construed so as to stifle the orderly evolution of such considerations in light of emerging techniques and concepts [regarding comparative negligence].” (Li, supra, 13 Cal.3d at p. 822 .) It thus concluded “section 1714 of the Civil Code was not intended to and does not preclude present judicial action in furtherance of the purposes underlying it.” (Id. at p. 823.)

Finding authority to act did not end the inquiry; the court also examined a variety of “considerations of a practical nature” implicated in the proposed change. (Li, supra, 13 Cal.3d at p. 823 .) After due consideration, it ultimately determined that none of the possible difficulties and uncertainties counseled against adopting comparative negligence. (Id. at pp. 823-829.) In sum, although the court acted in its common law capacity to modify substantially a legal doctrine, it did so consistent with the existing statutory framework and harmonized the change to ensure judicious development of relevant principles. As a result, subsequent application has maintained a consistency guided by definitive standards. (See, e.g., Jess v. Herrmann *103 (1979) 26 Cal.3d 131 [ 161 Cal.Rptr. 87 , 604 P.2d 208 ]; Associated Construction & Engineering Co. v. Workers’ Comp. Appeals Bd. (1978) 22 Cal.3d 829 [ 150 Cal.Rptr. 888 , 587 P.2d 684 ]; American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 [ 146 Cal.Rptr. 182 , 578 P.2d 899 ].)

No such orderly evolution has attended the development of our Tameny jurisprudence because the genesis was fatally flawed. In fact, it would be difficult to conceive a less auspicious beginning for a cause of action patently treading on legislative prerogatives. In the critical first instance, the court undertook no thorough reexamination of the matter, failed to explain how its holding was in furtherance of the purposes underlying the statutory framework of employment relations, and gave no apparent thought to considerations of a practical nature. ( Li, supra, 13 Cal.3d at pp. 820, 823.) Instead, it arrogated to the courts the role of vindicating fundamental public policy, which it made the sole determinant of this potent remedy but left entirely undefined in context.

As Justice Baxter’s dissent well documents, today’s decision marks the culmination of the chaos wrought by the court’s failure to adopt a disciplined and principled approach as in Li. To begin, the Tameny court failed to recognize that it was operating within an existing statutory scheme. The plaintiff’s employment was admittedly at will under Labor Code section 2922 (see ante, at p. 99, fn. 2), yet the court engaged in only conclusory analysis in justifying its disregard of that fact. ( Tameny, supra, 21 Cal.3d at pp. 173-174.) Nor did the court attempt to explain the need to resort to “fundamental public policy” to validate the plaintiff’s tort claim. Labor Code section 2856 (see ante, at p. 99, fn. 1) would certainly have sufficed since the complaint alleged “that ‘the sole reason’ for [his] discharge was his refusal to commit the ‘grossly illegal and unlawful acts which defendants tried to force him to perform.’ ” (Tameny, supra, 21 Cal.3d at p. 171, fn. omitted; see id. at p. 179 (conc. opn. of Manuel, J.).)

Instead of a more circumspect approach, we effectively conferred on the courts the role of declaring public policy, a function first and foremost reserved to the Legislature. (See Gantt, supra, 1 Cal.4th at p. 1095 ; Slaughter v. Friedman (1982) 32 Cal.3d 149, 158 [ 185 Cal.Rptr. 244 , 649 P.2d 886 ]; The Housing Authority v. Dockweiler (1939) 14 Cal.2d 437, 449-450 [ 94 P.2d 794 ]; S. & V. R. R. Co. v. City of Stockton (1871) 41 Cal. 147, 168 ; City of South San Francisco v. Cypress Lawn Cemetery Assn. (1992) 11 Cal.App.4th 916, 923 [ 14 Cal.Rptr.2d 323 ]; McCarthy v. City of Oakland (1943) 60 Cal.App.2d 546, 549-550 [ 141 P.2d 4 ]; Thome v. Macken (1943) 58 Cal.App.2d 76, 81 [ 136 P.2d 116 ]; cf. California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 24 [ 283 Cal.Rptr. 569 , 812 *104 P.2d 916 ].) Implicitly acknowledging the resultant tension, we attempted in Gantt to rectify the imbalance by requiring that “[a] public policy exception [be] carefully tethered to fundamental policies that are delineated in constitutional or statutory provisions [, which] strikes the proper balance among the interests of employers, employees and the public.” (Gantt, supra, 1 Cal.4th at p. 1095 ; see United States v. Trans-Missouri Freight Ass’n. (1897) 166 U.S. 290, 340-341 [ 17 S.Ct. 540, 558-559 , 41 L.Ed. 1007 ].) Nevertheless, not six years later, the majority here considers itself at liberty to reach out to nonlegislative sources to validate plaintiff’s Tameny claim. Surely, something is rotten in the state of our jurisprudence to permit such ambivalence.

The problem lies not simply in the overreaching, but also in making the only guiding principle “fundamental public policy.” (See, e.g., Tameny, supra, 27 Cal.3d at p. 179 (conc. opn. of Manuel, J.).) Perhaps the most colorful explanation of the difficulty with the concept came from this court more than a century ago: “It has been well said that public policy is an unruly horse, astride of which you are carried into unknown and uncertain paths . . . .” (Stephens v. Southern Pacific Co. (1895) 109 Cal. 86 , 89 [ 41 P. 783 ].) This point has apparently been self-evident to all but the Tameny court: “[I]t is generally agreed that ‘public policy’ as a concept is notoriously resistant to precise definition, and that courts should venture into this area, if at all, with great care and due deference to the judgment of the legislative branch, ‘lest they mistake their own predilections for public policy which deserves recognition at law.’ [Citation.]” (Gantt, supra, 1 Cal.4th at p. 1095 ; see Safeway Stores v. Retail Clerks etc. Assn. (1953) 41 Cal.2d 567, 575 [ 261 P.2d 721 ].) Even the Court of Appeal in Petermann forewarned, “ ‘ “Public policy is a vague expression, and few cases can arise in which its application may not be disputed. Mr. Story in his work on Contracts (§ 546), says: ‘It has never been defined by the courts, but has been left loose and free of definition . . . .’ ” ’ ” (Petermann, supra, 174 Cal.App.2d at p. 188 .)

By its very nature, fundamental public policy “requires an exercise of judicial judgment that cannot be captured by the naked words of verbal formulae.” (Brecht v. Abrahamson (1993) 507 U.S. 619, 656 [ 113 S.Ct. 1710, 1731 , 123 L.Ed.2d 353 ] (dis. opn. of O’Connor, J.); cf. In re Gallego (1998) 18 Cal.4th 825 [ 77 Cal.Rptr.2d 132 , 959 P.2d 290 ] (conc. and dis. opn. of Brown, J.).) Indeed, the majority in Stevenson candidly admitted as much: “This court has not articulated a test for determining when a public policy is sufficiently substantial and fundamental to support a cause of action for tortious wrongful discharge.” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 895 [ 66 Cal.Rptr.2d 888 , 941 P.2d 1157 ] (Stevenson); see also City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1160-1161 *105 [ 77 Cal.Rptr.2d 445 , 959 P.2d 752 ]; Rojo v. Kliger (1990) 52 Cal.3d 65, 90-91 [ 276 Cal.Rptr. 130 , 801 P.2d 373 ].) Yet, every case following Tameny has simply repeated the “fundamental public policy” mantra, which remains, like any talisman, devoid of meaning or content. Little wonder its application yields no certain or reliable results across the spectrum of “multifarious types of employment and the various circumstances of discharge.” (Murphy v. American Home Products Corp., supra, 461 N.Y.S.2d at p. 236 [ 448 N.E.2d at p. 90 ]; cf. People v. Birks (1998) 19 Cal.4th 108, 138 [ 77 Cal.Rptr.2d 848 , 960 P.2d 1073 ] (conc. opn. of Mosk, J.) [“In [People v. Geiger (1984) 35 Cal.3d 510 [ 199 Cal.Rptr. 45 , 674 P.2d 1303 , 50 A.L.R.4th 1055 ]], we failed to articulate an implementing standard, a test for determining whether a lesser offense is ‘related’ to the charged offense. We implied that such a standard would articulate itself in the application. That was indeed our hope. It has not been fulfilled.”].)

Until today, the court sensed the inherent tension and need to impose some of the discipline lacking in Tameny. Gantt attempted to reinstate the traditional balance between legislative and judicial roles in articulating public policy. (Gantt, supra, 1 Cal.4th at p. 1095 .) In Foley , we limited claims to those implicating a policy “which inures to the benefit of the public at large rather than to a particular employer or employee.” (Foley, supra, 47 Cal.3d at p. 669 .) In Turner and Jennings , the court emphasized the importance of notice to employers that their conduct would contravene a particular public policy. (See Jennings, supra, 8 Cal.4th at pp. 132, 135; Turner, supra, 7 Cal.4th at p. 1257.) Ultimately, as the majority opinion bears witness all too well, these efforts fell short in bringing any meaningful definition to a cause of action for tortious wrongful termination.

The reason is one all too common to the judiciary: In each post-Tameny case, the court has engaged in decisionmaking by rote. We are content to rely on the “fundamental public policy” shorthand, confident we know one when we see it despite the admitted absence of any governing legal principles. (See maj. opn., ante, at p. 89; cf. Jacobellis v. Ohio (1964) 378 U.S. 184, 197 [ 84 S.Ct. 1676, 1683 , 12 L.Ed.2d 793 ] (conc. opn. of Stewart, J.).) The problem with this process is that it masks the essential impropriety of the courts’ assuming multiple roles: acting as legislators in deciding which fundamental policy will be implemented by their potent remedy, as prosecutors in choosing who may be accused of wrongdoing, and as judges in determining the ultimate scope of liability. Equally problematic is the ad hoc and ex post facto nature of these determinations. Is fundamental public policy really nothing more than what one trial court judge, or two appellate justices, or four members of this court say it is?

For all our avoidance, the task we face might prove deceptively simple. At their essence, tortious wrongful termination actions “are premised on closing *106 a gap that would otherwise leave public policy vulnerable to employers that could flout it with impunity through their hapless employees. [Citation.]” (Stevenson, supra, 16 Cal.4th at p. 921 (dis. opn. of Brown, J.); see id. at pp. 919-922.) In this respect, Tameny presented a classic paradigm: An employer demanded as a condition of employment that the employee commit a crime. Labor Code section 2856 protects employees from such overreaching. It does not, however, provide a specific remedy, and therein lies the legislative “gap” the court may properly fill in vindication of the public policy the statute implicitly reflects.

Adopting such an approach, the court would have fully articulated its rationale, and appropriate extension or limitation of its reasoning could proceed as an orderly evolution, not chaotic devolution. For example, the impetus in Gantt was to curtail the proliferation of Tameny claims. But, having to wrestle with “fundamental public policy” as the standard, it could only arbitrarily restrict them to causes of action predicated on statute or constitutional provision, some of which would still be unsuitable. (See Foley, supra, 47 Cal.3d at p. 669 .) In this respect, the “gap” approach is objectively self-limiting: It would eliminate all cases in which the Legislature has provided some recourse, since the public policy incorporates the remedy. (See Jennings, supra, 8 Cal.4th at p. 130 ; see also Stevenson, supra, 16 Cal.4th at pp. 919-925 (dis. opn. of Brown, J.).) At the same time, application would not be inherently restricted to statutory policy sources; regulations might well come within this rationale. 5 Nevertheless, a nexus or necessary linkage must exist between the public policy and legislative intention to protect employees from wrongful termination in relation thereto.

IV

Llewellyn exhorts judges “to take at least one fresh look” each time they confront a recurring issue. (Llewellyn, The Common Law Tradition (1960) p. 293.) “The new prodding of the new facts may bring something better into focus. The queer subconscious may this time be ready to give up an out which has been cooking down in there since the last time the court walked through these legal sandburs. In this effort to take a [fresh] look each time, the appellate court’s job, their duty, [is] to freshen up consciously .... It must not be what all habit, all routine, all weariness cry out that it is and has to be: just another of the shopworn same.” (Id. at pp. 293-294.)

*107 In hindsight, the better part of valor might have been to heed Justice Clark’s admonition to leave creating exceptions to at-will employment with the Legislature. At the very least, we should heed the lessons of experience. In my view, the time has come for the court to take a fresh look at our Tameny jurisprudence or, in our own words, undertake a “thorough reexamination of the matter,” starting with a principled articulation of the rationale for a public policy exception to the at-will employment statute. (Li, supra, 13 Cal.3d at p. 810 .)

Baxter, J., concurred.

Respondent’s petition for a rehearing was denied October 21, 1998. Baxter, J., and Brown, J., were of the opinion that the petition should be granted.

Labor Code section 2856 provides: “An employee shall substantially comply with all the directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee.”

Labor Code section 2922 provides in part: “An employment, having no specified term, may be terminated at the will of either party on notice to the other.”

A recent Court of Appeal decision in which this court denied a depublication request actually provides an even more apt illustration: In Phillips v. Gemini Moving Specialists (1998) 63 Cal.App.4th 563 [ 74 Cal.Rptr.2d 29 ], the plaintiff, a “casual employee” of the defendant moving company, had admittedly caused damage to his employer’s property. The employer deducted the amount of the damage—-$35—from the employee’s next paycheck, but without the latter’s authorization. Thereafter, the employer refused to give the employee any more work. The employee sued for tortious wrongful termination based on the “public policy” set forth in Code of Civil Procedure section 487.020, which prohibits the attachment of an employee’s earnings. The trial court sustained a demurrer, but the Court of Appeal reversed. After quoting extensively from Gantt, Foley, and Turner, the court concluded “that ‘the prompt payment of wages due an employee is a fundamental public policy of this state’ ” and therefore Code of Civil Procedure section 487.020 qualified as a Tameny predicate. (Phillips v. Gemini Moving Specialists, supra, 63 Cal.App.4th at p. 571 .) At least on the facts presented, one could hardly imagine a policy that less “involve[s] a matter that affects society at large rather than a purely personal or proprietary interest of the plaintiff or employer . . . .” (Gantt, supra, 1 Cal.4th at p. 1090 .)

Civil Code section 4 provides: “The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. The Code establishes the law of this State respecting the subjects to which it relates, and its provisions are to be liberally construed with a view to effect its objects and to promote justice.”

Civil Code section 5 provides: “The provisions of this Code, so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof, and not as new enactments.”

On these facts, however, I would not agree with the majority’s determination that plaintiff has a viable cause of action. The Federal Aviation Act regulations alluded to do not apply to defendant. (See Jennings, supra, 8 Cal.4th at pp. 135-136.) Moreover, the Legislature has already determined plaintiff’s conduct should be accorded wrongful termination protection only when suspected regulatory violations are “disclos[ed] ... to a government or law enforcement agency . . . .” (Lab. Code, § 1102.5, subd. (b).) In my view, the statute articulates the extent of any relevant public policy. (Cf. Jennings, supra, 8 Cal.4th at p. 130 .)