Reynolds v. Advance Alarms, Inc.

¶ 1 Plaintiff, Robert Reynolds, filed a complaint in the United States District Court for the Northern District of Oklahoma against his former employer, Advanced Alarms, Inc., defendant, and its principal owner, Robert Morrison, individual defendant. Reynolds claimed his former employer violated the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201 et seq., and the public policy of Oklahoma when the employer allegedly fired him for contacting the Oklahoma Department of Labor with an inquiry about his employer’s lunch-break policy. The defendants moved for summary judgment.

¶2 On both the federal retaliation claim and the state public policy claim against the individual Robert Morrison, the federal district court granted summary judgment in favor of Morrison. On the state public policy claim against Advance Alarms, Inc., the federal district court certified the following question of state law to this Court:

Does the Oklahoma Protection of Labor Act, 40 O.S. §§ 165.2, 165.7, 165.8 and 199, provide an established and well-defined public policy sufficient to support a Burk tort claim?

¶ 3 The federal certification order set forth the following facts relevant' to the certified question.

Plaintiff, Robert Reynolds, worked for defendant, Advanced Alarms, Inc., from September 11, 2006, to May 16, 2007, first as an installer and then as a service technician. At the time he was hired, defendant had a policy requiring all employees to take a lunch break and providing that installers would have one hour deducted and service technicians would have 30 minutes deducted from their time each day for *909lunch break. Plaintiffs employment was terminated on May 16, 2007. Defendant contends plaintiffs termination was for substandard performance. Plaintiff alleges he was terminated because he contacted the Oklahoma Department of Labor on May 14, 2007, concerning defendant’s lunch break policy and whether, if employees worked through their lunch break, they must be paid. The call was allegedly reported to plaintiffs supervisor by one of plaintiffs fellow service technicians.

Plaintiff in this case asserted a federal claim for retaliatory discharge in violation of the Fair Labor Standards Act and a state common law claim for public policy wrongful discharge.

¶ 4 Employer’s legal duty regarding lunch breaks is the crux of the certified facts. Pursuant to § 1604 of the Revised Uniform Certification of Questions of Law Act, 20 O.S.2001, §§ 1601 et seq., we reformulate the certified question within the confines of the federal district court’s statement of relevant facts to read as follows:

Does the Oklahoma Protection of Labor Act, 40 O.S.2001 and Supp.2006, §§ 165.2, 165.7, and 165.8 and 40 O.S.2001, § 199, provide an established and well-defined public policy sufficient to support a Burk tort claim based on allegations that the' employee was wrongfully discharged for contesting the employer’s lunch-break policy?

We answer in the negative.

I. The Burk Tort Remedy

¶ 5 The Burk tort remedy is a common law cause of action against an employer based on public policy violation that is available to an employee when there is no other adequate remedy to redress the violation. Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24. It is an exception to the longstanding terminable-at-will employment doctrine applicable to employment of indefinite duration. 1989 OK 22 at ¶ 5, 770 P.2d at 26. The terminable-at-will employment doctrine allows an employer to discharge an employee for good cause, for no cause, or even for morally wrong cause without being liable for a legal wrong. Id.

¶ 6 Burk adopted the public policy exception to the terminable-at-will employment doctrine for “a narrow class of cases in which the discharge is contrary to a clear mandate of public policy as articulated by constitutional, statutory or decisional law.” 1989 OK 22 at ¶ 17, 770 P.2d at 28. Burk created a tort remedy limited to those situations “where an employee is discharged for refusing to act in violation of an established and well-defined public policy or for performing an act consistent with a clear and compelling public policy.” 1989 OK 22 at ¶ 19, 770 P.2d at 29. Burk cautioned that the public policy exception must be strictly applied: “In light of the vague meaning of the term public policy we believe the public policy exception must be tightly circumscribed.” 1989 OK 22 at ¶ 18, 770 P.2d at 28-29.

¶ 7 The Burk tort cause of action may be maintained upon the showing of three fundamental elements: 1) the plaintiff and defendant had a terminable-at-will employment relationship; 2) the employment relationship was terminated contrary to an identified compelling Oklahoma public policy that is clearly articulated in constitutional, statutory, or decisional law; and 3) there is no other adequate remedy to protect the identified public policy. McCrady v. Okla. Dept. of Public Safety, 2005 OK 67, ¶ 9, 122 P.3d 473, 475. Identifying the compelling public policy, the task we have here, is a question of law. Darrow v. Integris Health, Inc., 2008 OK 1, ¶ 9, 176 P.3d 1204, 1210.

¶ 8 According to Reynolds, Advanced Alarms illegally deducted time for lunch breaks when he actually worked, and Advanced Alarms wrongfully discharged him for seeking information from the Oklahoma Department of Labor as to whether he is legally entitled to be paid for the work he performed during his lunch breaks. The certified question specifies four labor statutes, 40 O.S.2001 and Supp.2006, §§ 165.2, 165.7, 165.8 and 199, and effectively asks whether these statutes 1) require an employer to pay an employee for work performed during lunch time and 2) impose liability upon the employer for discharging an employee who contacts the Oklahoma Department of Labor *910about the employer’s lunch-break policy. As set out below, these statutes do not support Reynolds’ Burk tort claim.

II. The Oklahoma Protection of Labor Act

¶9 Originally enacted in 1955,1 the Oklahoma Protection of Labor Act, 40 O.S.2001, §§ 165.1 et seq., as amended (Labor Act), unequivocally 1) imposes upon employers the duties to designate at least two paydays each month and to pay employee wages in lawful money on the designated paydays, 2) prohibits waiver of the minimum semimonthly paydays, 3) prescribes remedies for employees to collect due and unpaid wages, and 4) declares violations of the Labor Act to be misdemeanors. The certified question first cites § 165.2 as a source of the lunch-break public policy. Section 165.2 expresses the central purpose of the Labor Act. The 2006 version of § 165.2, applicable here, reads:

Every employer in this state shall pay all wages due the employees, other than exempt employees and employees of non-private foundations qualified pursuant to 26 U.S.C. 509(a)(1) and 26 U.S.C. 170(b)(l)(A)(vi), at least twice each calendar month on regular paydays designated in advance by the employer. State, county and municipal employees, exempt employees, and employees of nonprivate foundations qualified pursuant to 26 U.S.C. 509(a)(1) and 26 U.S.C. 170(b)(l)(A)(vi) shall be paid a minimum of once each calendar month. The amount due such employees shall be paid in lawful money of the United States, including payment by electronic means, and the employee shall not be deemed to have waived any right or rights mentioned in this section because of any contract to the contrary. With each payment of wages earned by such employee, the employer shall issue to such employee a brief itemized statement of any and all deductions therefrom. An interval of not more than eleven (11) days may elapse between the end of the pay period worked and the regular payday designated by the employer. The employer shall be allowed three (3) days after such payday in which to comply with this section.

No such employer shall issue, in payment of or as evidence of indebtedness due an employee any check, cashier’s check, draft, time check, store order, scrip, or other acknowledgment of indebtedness unless the same is payable or redeemable upon demand without discount and for face value in lawful money of the United.States.

40 O.S.Supp.2006, § 165.2.

¶ 10 Section 165.2 clearly articulates a compelling public policy requiring an employer, other than governmental employers, to pay an employee, other than exempt employees, his or her earnings on designated paydays at least semimonthly.2 The federal district court did not certify any fact that indicates Advanced Alarms did not pay wages in lawful money on designated paydays. Section 165.2 also clearly requires the employer to provide the employee with an itemized statement of any and all deductions withheld from the amount of wages paid. The federal district court did not certify any fact that indicates Advanced Alarms did not provide the required itemized statements. Reynolds argued that Advanced Alarms did not include his lunch time in his hours worked, but we have no certified fact that Advanced Alarms’ erroneously calculated hours worked or wages earned, and § 165.2 does not purport to guide the employer in calculating hours worked or wages earned.

¶ 11 Reynolds took the position that § 165.2 together with §§ 165.7, 165.8 and 199 of Title 40 compel an employer to pay an employee for work performed during lunch time and protect an employee who contests the employer’s lunch-break policy at the Oklahoma Department of Labor. Section 165.7 requires the Commissioner of Labor to *911enforce the Labor Act, prescribes an administrative procedure for the collection of due and unpaid wages, and allows individuals to bring a judicial action to collect due and unpaid wages.3

¶ 12 We have recognized that the administrative and judicial proceedings authorized in § 165.7 are “part of a larger statutory scheme — 40 O.S.2001, § 165.1 et seq., as amended — concerning the requirement that covered employers pay the wages due their employees including overtime pay when applicable.” Feightner v. Bank of Oklahoma, N.A., 2003 OK 20, ¶ 16, 65 P.3d 624, 629-630. The public proceedings and private actions to collect due and unpaid wages prescribed in § 165.7 undoubtedly mark the compelling nature of § 165.2⅛ payday policy, but there is no language in § 165.7 which explicitly or implicitly articulates a policy regarding work time or lunch breaks.

¶ 13 We turn to § 165.8 of Title 40, which reads:

It shall be a misdemeanor for any employer to violate any of the provisions of Sections 165.1 through 165.11 of this title.

40 O.S.2001, § 165.8. Declaring a violation of the Labor Act to be a misdemeanor emphasizes the compelling nature of the payday policy expressed in § 165.2, but, like § 165.7, § 165.8 neither explicitly nor implicitly articulates a work-time or lunch-break policy.4

*912¶ 14 Lastly, we turn to § 199 of Title 40 which declares that an employer shall be guilty of a misdemeanor if the employer discharges, penalizes, or otherwise discriminates against an employee for filing a complaint with the Commissioner of Labor, or institutes a proceeding on or an investigation of violations of specified labor statutes, or testifies or is about to testify in such proceeding or investigation.5 Reynolds urged that “the public policy goals underlying Section 199 which support a Burk tort claim, apply equally to internal and external complaints,” citing Darrow v. Integris Health, Inc., 2008 OK 1, 176 P.3d 1204. Darrow recognized that Oklahoma law protects both internal and external reports of whistleblow-ers and that employees who report and complain of an employer’s unlawful or unsafe practices seeking to unmask such breaches for the public good should be protected from an employer’s retaliation. 2008 OK 1 at ¶ 19, 176 P.3d at 1215.

¶ 15 Reynolds asserted that he internally and externally contested Advanced Alarms’ “illegal wage deductions.” He argued that the public policy involved here is “required repayment of unauthorized wage deductions” and that

[it] is obviously important for employees employed in the State of Oklahoma to have an ability to make wage claims to obtain repayment of these unauthorized wage deductions. Sources of this public policy are found at 40 O.S. Sects, [sic] 165.2, 165.7, 165.8 and 199.

Reynolds’ argument is outside the statement of facts certified to this Court. The certified facts do not concern a wage claim for unauthorized wage deductions. Clearly, a wage claim for unauthorized wage deductions could be filed with the Commissioner of Labor pursuant to § 165.7 of Title 40 or in any court of competent jurisdiction pursuant to § 165.9 of Title 40.

¶ 16 As to the external contesting, Reynolds argued that he sought information from the Oklahoma Department of Labor as to whether he is legally entitled to be paid when he worked through and did not take a lunch break. Section 199 protects both the employee seeking to unmask unlawful and unsafe employment practices as well as the employee involved in an investigation or called to testify. Section 199 does not, however, articulate a policy on wages independent of the policy articulated in § 165.2. In the absence of a legal requirement that Advanced Alarms pay Reynolds whenever he works through his lunch without Advanced Alarms’ permission, Reynolds’ inquiry of the *913Oklahoma Department of Labor does not rise to the level of an external report of an employer’s unlawful or unsafe practices under § 199 of Title 40.

¶ 17 Reynolds also argued that § 165.1, when read together with these sections, §§ 165.2, 165.7, 165.8, and 199 of Title 40, provides support for the public policy goal his employer violated by his discharge. Section 165.1 defines terms used in the Labor Act. It defines employer to include “every individual, partnership, firm, association, corporation, the legal representative of a deceased individual, or the receiver, trustee or successor of an individual, firm, partnership, association or corporation, employing any person in this state.” 40 O.S.2001, § 165.1(1). It defines employee to mean “any person permitted to work by an employer.” Id. § 165.1(2) (bold added). It also defines wages to mean:

compensation owed by an employer to an employee for labor or services rendered, including salaries, commissions, holiday and vacation pay, overtime pay, severance or dismissal pay, bonuses and other similar advantages agreed upon between the employer and the employee, which are earned and due, or provided by the employer to his employees in an established policy, whether the amount is determined on a time, task, piece, commission or other basis of calculation;

Id. § 165.1(4) (bold added).

¶ 18 These definitions simply do not require an employer to pay an employee for work performed during the lunch break. The definition of “employee” does not impose a duty upon an employer to pay an employee for working through his lunch without the employer’s permission. The definition of “wages” does not impose a duty upon an employer to pay an employee for working through the lunch break in the absence of an established policy or an agreement; and according to the certified facts, Advanced Alarms had an established policy that employees must take a lunch break and time for lunch break will be deducted from the hours worked each day. We conclude that §§ 165.1, 165.2, 165.7, 165.8, and 199 of Title 40 do not compel an employer to pay an employee for work performed during a lunch break without the employer’s permission and in the absence of an established policy.

¶ 19 Reynolds cited several cases from sister states for the proposition that the labor statutes support a Burk tort remedy, but those cases are distinguishable on the issues, the facts or the law, and some are unreported decisions. In determining the intent and purpose of a statute, we look beyond the face of a statute itself. In our independent research of Oklahoma’s constitutional, statutory, and decisional law, we find no public policy requiring an employer to pay an employee for work performed during lunch time in the absence of an established policy or agreement. As Burk teaches, we will not find an implied public policy in the absence of a constitutional or statutory provision clearly articulating that public policy. Gilmore v. Enogex, Inc., 1994 OK 76, ¶ 14, 878 P.2d 360, 365; Shero v. Grand Savings Bank, 2007 OK 24, 161 P.3d 298.

III. Conclusion

¶ 20 We conclude that Oklahoma does not have a clear and well-defined public policy protecting an employee’s right to a lunch break or requiring an employer to pay wages to the employee for work performed during the lunch break without the employer’s permission. This conclusion does not encompass employer-ordered work during a lunch break. Our answer to the reformulated question is that the Oklahoma Protection of Labor Act, 40 O.S.2001 and Supp.2006, §§ 165.2, 165.7, and 165.8, and 40 O.S.2001, § 199 do not provide an established and well-defined public policy sufficient to support a Burk tort claim based on allegations that the employee was wrongfully discharged for contesting the employer’s lunch-break policy.

REFORMULATED CERTIFIED QUESTION ANSWERED.

KAUGER, J., concurs in part and dissents in part (by separate writing).

REIF, J., disqualified.