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Workers at smallest firms using ‘public policy’ loophole to file suits

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in Discrimination and Harassment,Firing,Human Resources,Maternity Leave Laws

If you operate a small business, don't take it for granted that you're immune from state discrimination laws.

It's true that state anti-bias laws don't apply to businesses that fall below a minimum employee threshold (anywhere from three employees to 15 employees, depending on the state). But employees at such small companies are testing new legal waters. They're claiming they should be able to sue under common law because the firings violate "public policy."

Unlike legislative laws, common law is grounded in longstanding customs and decrees affirmed by the courts.

Example: In Washington state, the Supreme Court allowed Lynne Roberts to sue the small veterinary clinic that fired her when she took maternity leave, even though the clinic had fewer than eight workers, the state minimum for coverage under legislative discrimination laws.

The court gave Roberts the green light to file a common-law wrongful termination suit. Its reason: Her firing violated several public policies against gender discrimination cited in the state constitution, statutes and court decisions. (Roberts v. Dudley, No. 67365-9, Sup. Ct. Wash., 2000)

Businesses are pressing the state legislature to send such claims to a commission before they go to court.

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