In recent years, the traditional common law rule known as “employment at will,” has come under attack. To temper what they perceived as harsh and unjust results from the rigid application of an anachronistic rule, courts and legislatures carved out a variety of exceptions to the at-will employment doctrine. The decline of this venerable doctrine has not been without side-effects; the exceptions have sacrificed the stability, predictability, and economic efficiency the rule provides. The American employment at-will rule has been modified via statutory and judicial fiat. Congress and state legislatures have narrowed the at-will rule through a variety of statutes, most of which seek to remedy discrimination of one form or another. By far, the most widely recognized juridical limitation on the rule is the public policy exception, which generally provides that an employer may not discharge an at-will employee "if the purpose and intent is to frustrate and subvert clear public policy." Courts have struggled to define and determine what amounts to "clear public policy," utilizing an array of sources and theories. In determining the public policy for a particular jurisdiction, courts have sometimes disregarded or altered the legislature's intended remedy for a particular offense or action. Whether such disregard amounts to a usurpation of legislative authority is the focus of this article. Part II briefly examines the history and purpose behind the traditional employment at will rule and outlines the various exceptions that have been created. Part III focuses specifically on the public policy exception to the at-will rule, examining the sources that courts have looked to as evidence of a jurisdiction's public policy. The interaction between the courts and legislatures in determining and implementing a jurisdiction's public policy is addressed in Part IV. Part V proposes that a strict presumption against implying a private right of action by way of the public policy exception exist, suggesting guidelines for courts to follow in determining whether it is consistent with the legislative scheme to override the presumption and permit a private cause of action. Finally, Part VI concludes that greater deference needs to be given to the legislature, the appropriate body for determining public policy in a representative democracy.
Mark A. Fahleson,
The Public Policy Exception to Employment at Will—When Should Courts Defer to the Legislature?,
72 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol72/iss4/3