§ 6.1.6.2 ARIZONA CONSTITUTION.

• Jurisdiction: Arizona

§ 6.1.6.2 Arizona Constitution. The EPA expressly authorizes wrongful discharge claims where an employee has been terminated for refusing to commit an act or omission that would violate the Arizona Constitution.¹¹⁴ The right to assert a wrongful discharge claim under those circumstances had previously been suggested by the Arizona Supreme Court in Wagner v. City of Globe.¹¹⁵

The Ninth Circuit addressed an apparent anomaly in the EPA in McBurnie v. City of Prescott.¹¹⁶ Specifically, the EPA's antiretaliation provision prohibits an employer from terminating an employee in retaliation for the employee's refusal "to commit an act or omission that would violate the Constitution of Arizona or the statutes of this state,"¹¹⁷ but the EPA does not mention the Arizona Constitution where it identifies other, nonretaliatory public policy violations that may give rise to a wrongful discharge claim.¹¹⁸ The court in McBurnie interpreted this language literally, holding that the EPA bars termination "in retaliation for . . . '[t]he refusal by [an] employee to commit an act or omission that would violate the Constitution of Arizona,'"¹¹⁹ but "does not bar [other] termination[s] in violation of the Arizona Constitution."¹²⁰

This appears to be an unduly formalistic interpretation of the EPA,¹²¹ at odds with the view prevailing in other jurisdictions.¹²² Despite the literal language of the EPA,¹²³ the legislature seems unlikely to have intended for an employment termination that violates a public policy reflected in the Arizona Constitution to be actionable only if that public policy is also embodied in an Arizona statute.¹²⁴ In any event, the Ninth Circuit's interpretation of the EPA in McBurnie is not binding on the Arizona state courts.¹²⁵

In Hart v. Seven Resorts, Inc.,¹²⁶ employees who had been terminated for refusing to submit to drug testing in accordance with the terms of their employer's personnel manual were not permitted to pursue wrongful discharge tort claims.¹²⁷ Citing the Washington Court of Appeals' similar ruling in Roe v. Quality Transportation Services,¹²⁸ the Hart court held that, at least in the private employment setting,¹²⁹ Arizona's constitutional right to privacy¹³⁰ "does not provide a clear mandate of public policy to support a cause of action for wrongful termination."¹³¹

Significantly, the Hart court distinguished Weller v. Arizona Department of Economic Security,¹³² an earlier unemployment compensation benefits case in which the Arizona Court of Appeals had cited the state constitution "as evidence of Arizona's public policy to protect individual privacy,"¹³³ but nevertheless stated:

The Legislature has not precluded employers from terminating employees who use drugs either on the job or off. . . . In employment-at-will situations, an employee agrees to abide by the rules of his employer as a condition of employment. Therefore, an employee who violates the employer's rule may be terminated. Indeed, at-will employment may be terminated at the pleasure of either party with or without cause. Thus, an employer who terminates an at-will employee for failing a drug test ordinarily incurs no civil liability.¹³⁴

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Notes:

^[114] A.R.S. § 23-1501.A.3(c)(i).

^[115]150 Ariz. 82, 88, 722 P.2d 250, 256 (1986).

^[116] 511 F. App'x 624 (9th Cir. 2013).

^[117] A.R.S. § 23-1501.A.3(c)(i).

^[118] A.R.S. § 23-1501(A)(3)(b) ("An employee has a claim against an employer for termination of employment only if...