MOORE v. WARR ACRES NURSING CENTER, LLC.

WINCHESTER, J.,

with whom TAYLOR J., Joins, dissenting:

T 1 I respectfully, dlssenfi.

12 This employer did not require the employee to work his schedule nor. remain at work and do other duties not associated with direct patient care, While I understand the summary judgment aspect, the majority nevertheless acknowledged that the termination of this employee was likely the result of actual misconduct. The majority opinion clearly impacts and restricts employment-at-will. I do not take issue with a health department rule that protects patient exposure. But, the employer should be given the flexibility to evaluate his employee's absence from work and also the flexibility to determine whether alternative duties are appropriate and consistent with the employment contract, The practical impact of this Court's holding is to expand the public policy exception to employment-at-will, which will now be governed by administrative rules and regulations. After this case.becomes law, an employer. must consult those rules and regulations before exercising the decision to terminate an employee.

18 The rule of stare decisis does not support the majority opinion,. My reading of the opinion is that public policy is now also found in "Oklahoma and Federal regulations." 1 The majority opinion cites the at-will employment rule as established by stare decisis. In [ 18 of that opinion the Court quotes: "1) the plaintiff must identify an Oklahoma public *906policy goal that is clear and compelling and is articulated in existing Oklahoma constitutional, statutory or jurisprudential law...." The majority opinion in 20 poses the "precise question of law" as "whether Oklahoma's constitutional, statutory, or decisional law or . a federal constitutional provision even prescribes a norm of conduct for Oklahoma that was violated." The opinion then answers "overwhelmingly and clearly yes."

T4 The majority opinion cites Silver v. CPC-Sherwood Manor, Inc.; 2004 OK 1, 84 P.3d 728, and pronounces a result not found in the Silver opinion: "In Silver ... we recognized that a cook for a nursing home who was fired for going to the emergency room with diarrhea and throwing up stated a cause of action by showing a public policy violation of the Oklahoma Administrative Code provisions of the Oklahoma State Department of Health." Majority Opinion, 1 21. Emphasis added. -

T5 The majority opinion continues in the same paragraph that the public health codes " 'in a clear and compelling fashion' articulate a well-defined, firmly established, state public policy prohibiting the holding, preparing, or delivering of food prepared under the conditions whereby it may have been rendered diseased, unwholesome, or injurious to health." That holding is not found in Silver.

T6 An examination of that opinion reflects that the Silver majority attempted to continue to restrict "public policy" to statutes, as opposed to administrative regulations. The Silver Court does not cite Administrative Code provisions as setting public policy. In fact, it specifically disclaims such a position: "This Court need not mire itself in the controversy which confronted the Court of Civil Appeals concerning whether certain agency rules promulgated by the Oklahoma Department of Health provide a permissible source of public policy in this matter." Silver, 2004 OK 1, ¶ 6, 84 P.3d at 730.

T7 The statutes cited in Silver were from title 63, and are now codified at 63 0.8.2011, §§ 1-1102, and 1-1109. The Silver Court held: "Sections 1-1102%(a) (c) and 1-1109(a)(4) articulate, in a clear and compelling fashion, a well-defined, firmly established, state public policy prohibiting the holding, preparing, or delivering of food prepared under conditions whereby it may have been rendered diseased, unwholesome, or injurious to health." Silver, 2004 OK 1, ¶ 7, 84 P.3d at 730.

T8 The new, and previously rejected rule, comes in 123 of the majority opinion of the case now before this Court: "Similar public health codes in a clear and compelling fashion, also articulate a well-defined, firmly established, state public policy prohibiting a nurse from working while infected with the influenza." The Court attempts its support of this new rule by linking article 5, § 89 of Oklahoma's Constitution, which vests legislative power to establish agencies, to the subsequent establishment of agencies. Then when administrative agencies promulgate rules, the majority opinion concludes that because administrative agencies create rules that are binding "similar to" statutes, and because those rules are authorized and approved by the Oklahoma Legislature, then these are somehow equivalent to statutory law. That reasoning is faulty.

T 9 Public policy cannot be delegated to an administrative agency. < Section 1 of article IV of the Oklahoma Constitution provides:

"The powers of the government of the State of Oklahoma shall be. divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others."

T 10 Section 1 of article V of the Oklahoma Constitution requires that "The Legislative authority of the State shall be vested in a Legislature consisting of a Senate arid House of Representatives...." From these constitutional provisions comes the prohibition against the delegation of legislative power.

{11 The Court in Democratic Party v. Estep, 1982 OK 106, ¶ 16, n. 23, 652 P.2d 271, 277 n. 23 (1982) observed that this prohibition against the delegation of legislative power "rests on the premise that the legislature must not abdicate its responsibility to resolve fundamental policy making by [1] delegating *907that function to others or [2] by failing to provide adequate directions for the implementation of its declared policy." Declaring that a violation of the Oklahoma Administrative Code provisions of the Oklahoma State Department of Health is a violation of public policy and therefore fits within the exception to at-will employment articulated in Burk v. K-Mart Corp., 1988 OK 22, ¶ 17, 770 P.2d 24, 28, is not supported by our case law.

112 "The terminable-at-will employment doctrine allows an employer to discharge an employee for good cause, no cause, or even for a morally wrong cause without being liable for a legal wrong." Reynolds v. Advance Alarms, Inc., 2009 OK 97, ¶ 5, 232 P.3d 907, 909. "The Burk tort does not even protect an employee from the employer's poor business judgment, or corporate foolishness". Shero v. Grand Savings Bank, 2007 OK 24, ¶ 12, 161 P.3d 298, 302. In Darrow v. Integris Health, Inc., 2008 OK 1, ¶ 13, 176 P.3d 1204, 1211, that Court held that even a federal statute by itself cannot serve as an articulation of Oklahoma public policy absent a specific Oklahoma court decision, statute or constitutional provision.

113 If administrative rules are added to the list of sources for finding a violation of a clear mandate of public policy, I do not see how a Burk tort can be described as a "tightly cireumseribed framework." Shero, 2007 OK 24, ¶ 12, 161 P.3d at 303. 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. This new at-will employment rule forees employers to require that they terminate employees only if an articulable and provable good cause can be shown. The majority's holding continues to erode the right of employers to manage their businesses on a day-to-day basis."

[ 14 I would affirm the summary judgment of the trial court.

, Majority Opinion, 11 proclaims: "The public policy behind precluding a nursing home employee from working while infected with influenza is manifested in the Oklahoma Constitution, the Oklahoma statutes, Oklahoma and Federal regulations and caselaw." Emphasis added.