(concurring/dissenting) — The majority cor*464rectly determines Lucille Warnek and Michael Ocampo have failed to state a claim under RCW 51.48.025. But the majority too narrowly interprets the common-law cause of action created by Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 821 P.2d 18 (1996). Under Wilmot, a worker presents a prima facie common-law cause of action for wrongful discharge in violation of public policy if the worker’s discharge in the State of Washington is motivated by that worker’s filing of a Washington industrial insurance claim. Identical public policy considerations apply when an employer retaliates against a worker for filing a worker compensation claim under the law of another jurisdiction. The majority’s analysis of Wilmot fails to account for the reality of multistate employment and runs counter to the public policy generally expressed by the Legislature in RCW 51.48.025. For these reasons, I respectfully dissent.
Although we have a limited factual pattern because this is a certified federal question, the facts available to us are significant to our analysis. Warnek and Ocampo are members of the International Brotherhood of Boilermakers (the Union). Both previously had worked for ABB Combustion Engineering Services, Inc. (ABB) in a variety of ABB projects around the United States. Pursuant to the collective bargaining agreement between ABB and the Union, boilermakers are referred by the Union to projects operated by ABB where and when boilermakers are needed. The collective bargaining agreement allows ABB the right to reject any union member sent to an ABB project. In oral argument, ABB contended this right to reject, described as a “do not hire” list, is confined to a maximum of one year. ABB further argued Warnek and Ocampo were on its “do not hire” list for only a three month period. By contrast, counsel for Warnek and Ocampo in oral argument contended ABB advised Warnek and Ocampo by letter they *465would never hire them back and there was no limitation to the duration of one’s placement on the “do not hire” list.43
In this case, Warnek and Ocampo were sent to an ABB Colorado project where they were allegedly injured on the job. They filed worker compensation insurance claims in Colorado and were laid off by ABB after being medically cleared to return to work. ABB now contends these claims were fraudulent, but the record is silent as to whether ABB raised this issue in Colorado and as to the outcome of Warnek’s and Ocampo’s claims in Colorado. Subsequently, the Union sent Warnek and Ocampo to an ABB project in Longview,. Washington. ABB refused to permit them to work, indicating in July 17, 1997 and July 23, 1997 letters, they were ineligible for “rehire” at least in part as a result of having filed fraudulent claims.44
As previously noted, the majority is correct in holding Warnek and Ocampo have not stated a claim under the specific provisions of RCW 51.48.025. For a worker to state a cause of action under that statute, the alleged retaliation must have resulted from an employee’s filing a claim for benefits under Title 51 RCW, Washington’s Industrial Insurance Act. As Warnek and Ocampo did not file a claim for benefits under Title 51 RCW in this case, they have no action under RCW 51.48.025. However, that does not fully answer the federal court’s certified questions.
In Wilmot (again in answer to a question from the United States District Court for the Eastern District of Washington), we specifically concluded RCW 51.48.025 is not an exclusive remedy. Independent of the statute, a worker may file a tort claim for wrongful discharge based on allegations the employer discharged the worker in retaliation *466for having filed or expressed an intent to file a worker compensation claim. Wilmot, 118 Wn.2d at 52. As we concluded:
Even without RCW 51.48.025, we would acknowledge existence of a clear mandate of public policy against retaliatory discharge of employees for pursuing workers’ compensation benefits and allow a tort cause of action for wrongful discharge, as have a number of other jurisdictions.
Wilmot, 118 Wn.2d at 54. We described the common-law cause of action as follows:
The first step, therefore, is for plaintiff to make out a prima facie case for retaliatory discharge. To do this, plaintiff must show (1) that he or she exercised the statutory right to pursue workers’ benefits under RCW Title 51 or communicated to the employer an intent to do so or exercised any other right under RCW Title 51; (2) that he or she was discharged; and (3) that there is a causal connection between the exercise of the legal right and the discharge, i.e., that the employer’s motivation for the discharge was the employee’s exercise of or intent to exercise the statutory rights.
Wilmot, 118 Wn.2d at 68-69.
The majority believes the common-law cause of action for retaliatory discharge is not established in this case because Warnek and Ocampo received benefits in Colorado, not Washington. The majority also notes they were not ABB employees at the time they were the subject of any retaliation so that this was not a case of retaliatory discharge but a retaliatory refusal to hire. The majority declines to apply the common-law cause of action under Wilmot to retaliatory failure to hire. The majority is incorrect on both grounds.
Initially, the parties do not dispute that Warnek and Ocampo have presented at least a prima facie case of retaliation. ABB essentially admits as much. ABB has candidly admitted it did not allow them to work at Longview because of their disability claim in Colorado. ABB’s District Manager said in a declaration in the federal district court, *467“Because of the situation that occurred in the State of Colorado, ABB determined that it did not wish to employ Ms. Warnek or Mr. Ocampo on other jobs.” Decl. of Austin Bal-lou at 2. In other words, ABB terminated the recurring employment relationship with Warnek and Ocampo because they filed worker compensation claims in Colorado.
As to the majority’s first issue, the policy expressed in RCW 51.48.025 and in Wilmot is not so narrowly confined to Washington industrial insurance benefits as the majority suggests. In our modern economic system, workers are mobile, working in a number of jurisdictions, often for the same employer.45 We can certainly take cognizance of the fact a number of workers in Washington may he 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. §§ 901-950) and the presentation of a claim under Title 51 RCW 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 compen*468sation 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 forgo 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 compensa-ble 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 with an employer.46 In effect, Warnek and Ocampo appear to have had a long-term *469employment relationship with ABB on a recurring basis. As is the practice in many other trades, Warnek and Ocampo were referred by the 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.” Warnek and Ocampo had previously worked for ABB in a variety of locales across the United States, including Idaho, Colorado, North and South Dakota, and Washington. The federal district court found Warnek and Ocampo “have been hired by Defendant in the past to work on jobs in several midwestern and western states, including Washington.” Order Granting Mot. For Certifications of Issues at 1-2. Thus, while it is evident Warnek and Ocampo were not full-time employees of ABB, they ostensibly had a recurring employment relationship with ABB.
In the case of their prospective employment in Longview, Washington, they were sent to that jobsite by the Union. In the normal course, they would have worked at the ABB Longview jobsite but for ABB’s decision to reject them for some period of time. Any other workers sent by the Union to the site would have been employed. In effect, ABB discharged Warnek and Ocampo by refusing to allow them to work in Longview after the Union had assigned them to that jobsite.
*470Even if we read the term “employee” as narrowly as the majority suggests, the term arguably applies to former employees who are the subjects of retaliation.47 Support can be found for this position in the United States Supreme Court decision in Robinson v. Shell Oil Co., 519 U.S. 337, 117 S. Ct. 843, 136 L. Ed. 2d 808 (1997). There, Shell terminated Robinson. Robinson filed an Equal Employment Opportunity Commission charge under Title VII of the Civil Rights Act of 1964. While that charge was pending, Robinson applied for a job with another employer. Shell gave Robinson a very negative reference when the prospective employer contacted it. The United States Supreme Court held that the term “employee” under Title VII of the Civil Rights Act of 1964 was sufficiently ambiguous to extend the coverage of the law to former employees like Robinson. The Court held Robinson established a prima facie case under Title VII of the Civil Rights Act when Shell gave a negative reference on him, even though he was no longer technically a Shell employee. The United States Supreme Court indicated this was consistent with the broad policy of antiretaliation articulated in the Civil Rights Act.
Moreover, it is noteworthy RCW 51.48.025 does not confine its provisions to wrongful discharge. Instead, the statute extends its protection to “[a]ny employee who believes that he or she has been discharged or otherwise discriminated against by an employer in violation of this section[.]” (Emphasis added.) RCW 51.48.025(2). Thus, the public policy in Washington may well extend to discrimination beyond that which would be described as retaliatory discharge. See Johnson v. Safeway Stores, Inc., 67 Wn. App. 10, 833 P.2d 388 (1992) (employee who was denied an opportunity to file an industrial insurance claim due to threats and coercions by his manager stated a cause of action). We do not need to reach that issue here in light of Warnek and Ocampo’s ongoing relationship with ABB.
*471The grave implication of the majority’s holding is that all workers referred by a union to the same company on a recurring basis would have no recourse at common law if that company refused to employ them in retaliation for their having filed a worker compensation claim. The ambit of the public policy we announced in Wilmot surely embraces the thousands of Washington workers who are not traditional employees.48
In summary, I would respond to the federal court’s certified questions by holding Warnek and Ocampo failed to state a cause of action under the specific terms of ROW 51.48.025. However, they could state a case under the common-law cause of action articulated in Wilmot where the test for a prima facie case under Wilmot is properly understood. Warnek and Ocampo would have to demonstrate the existence of a long-term, recurring employment relationship with ABB that was terminated by ABB when they presented worker compensation claims in Colorado and those claims constituted a substantial factor in ABB’s decision to end the employment relationship.49
The public policy of Washington is to prevent retaliation by employers against workers who present legitimate worker compensation claims under Washington law or the law of any other jurisdiction. Our public policy recognizes the importance of proper compensation of injured workers for on-the-job injuries. We should not create exceptions to *472this public policy simply because workers have made the claims in other jurisdictions or have been referred for work by a union.
Durham and Johnson, JJ., concur with Talmadge, J.
The letter ABB sent to the Union regarding Warnek and Ocampo states, “ABB C-E Services has deemed these two individuals not eligible for rehire on any of our projects. Therefore, they will not be hired on our Longview Fibre Unit #15 Project.” Attach. F, Pl.’s Aff. In Opp’n to Def.’s Mot. For Summ. J. (July 17, 1997 letter).
The foregoing facts appear in the United States District Court’s Order Granting Mot. for Certification of Issues at 2, and in the record from the federal court.
Under ER 201, we can take judicial notice that ABB Combustion Engineering Services, Inc., is a division of a $6 billion United States company that in turn is part of the global giant, ABB Group, a $31 billion company that ranks 83rd in the world on Fortune’s Global 500 list of companies. See http://www.pathflnder.com/fortune/global500/5001ist2_51.html.
Although the issue was not discussed here, even where a person was a first time applicant for employment, and such applicant had a history of on-the-job injuries resulting in disability, the applicant would have a claim under *469Washington’s law against discrimination, RCW 49.60, against an employer that refused to hire the applicant because of physical disabilities. In fact, WAC 162-12-140, a regulation promulgated by Washington’s Human Rights Commission, makes it improper for an employer to even ask an applicant about prior worker compensation claims.
We held in Reese v. Sears, Roebuck & Co., 107 Wn.2d 563, 731 P.2d 497 (1987), overruled on other grounds by Phillips v. City of Seattle, 111 Wn.2d 903, 766 P.2d 1099 (1989), that Title 51 RCW was not the exclusive remedy for a worker who had been injured on the job and then was discriminated against by the employer; the worker could state a claim under RCW 49.60 for handicap discrimination. See also Goodman v. Boeing Co., 127 Wn.2d 401, 899 P.2d 1265 (1995) (injured worker’s recovery under RCW 49.60 may extend to separate physical or emotional injuries arising from the discrimination).
Washington public policy encourages the employment of previously injured workers. See RCW 51.16.120; RCW 51.32.095 (second injury fund providing incentives to employment of previously injured workers).
The mere termination of an employment relationship cannot foreclose a cause of action under RCW 51.48.025(2) or the common law.
Workers referred by a union are not the only workers affected by the majority’s analysis. Independent contractors would also be affected (see Marquis v. City of Spokane, 130 Wn.2d 97, 922 P.2d 43 (1996) (Law Against Discrimination’s reference to “employees” extends to independent contractors)), as would temporary employees (see ROW 51.16.060 (temporary help company deemed employer for industrial insurance purposes)).
ABB argues it terminated Warnek and Ocampo in Colorado for making fraudulent worker compensation claims there. As we indicated in Wilmot, such an argument could certainly be an affirmative defense by the employer to a prima facie case of retaliatory discharge in violation of public policy. In Wilmot, the employer argued the employees’ discharge was not motivated by retaliation, but was the result of their chronic absenteeism. We held the chronic absenteeism argument could be raised as a defense. Wilmot, 118 Wn.2d at 75-76. Similarly, ABB here could assert its fraudulent worker compensation claim defense in response to a prima facie case of retaliatory discharge by the employees.