WRONGFUL TERMINATION

A brief history of employment-at-willand its slow erosion

Jon Howard RosenThe Rosen Law Firm705 Second Avenue, Suite 1200Seattle, WA 98104·1798(206) 652·1464(206) 652-4161 (facsimile)jhr@jonrosenlaw.comwww.jonrosenlaw.com

Second Annual ABA-LELAnnual CLE ConferenceDenver, ColoradoSeptember 12, 2007

I. HISTORICAL BACKGROUND

Employment contracts have been with us since time immemorial. The Book of

Genesis records that Jacob entered into an employment agreement with his mother's

cousin Laban in exchange for permission to marry Laban's daughter Rachel. Jacob

agreed to work for Laban for seven years as a shepherd at the end of which time he would

be free to marry his beloved Rachel. Genesis 29: 15-30. Laban then breached his

agreement by surreptitiously switching his older daughter Leah for the more comely

Rachel.

It is not mere coincidence that the development of the employment relationship

evolved as a part of an overall family relationship. The relationship between family and

employment continued through the Middle Ages. Employment law was viewed both in

England and on the European continent as a specialized branch of. family law. This

should not be surprising since under the feudal system, and for a period of time

thereafter, domestic servants and craftsman were a very real part of the household of the

lord or burgher. An employer was considered to be in a role akin to that of a husband or

a father. Digests, legal encyclopedias, and treatises still use the term "master and

servant" to describe the law of the employment relationship.

The family law aspect of employment relations dictated that the relationship was

more one of status than of contract. As will be seen, the evolution of employment law

has changed that concept dramatically.

It wasn't until 1875 that the British Parliament decriminalized the employee's

breach of an employment agreement and made it enforceable only in the civil courts.

Prime Minister Disraeli noted that as a result of the reform "For the first time in the

history of this country the employer and the employed sit under equal laws." 15 W.

Holdsworth, A History oj Ellglish Law, 20 (3d ed. 1927) quoted in Modern Law oj

Employment Contracts, C. Bakaly, Jr. and J. Grossman, 3 (1983).

II, THE AMERICAN RULE OF TERMINATION AT WILL

A. THE BASIS OF THE AMERICAN RULE

When a worker breached his "contract" of employment, whether in England or in

colonial America, an employer could obtain a court order enjoining the employee from

refusing to work. The refusal, moreover, was viewed as a crime for which the employee

could be imprisoned. The source of these laws was the Statute of Labourers, a series of

laws enacted between 1349-1351 in response to the effect of the Black Plague that swept

Europe, decimating the population and causing a severe shortage of workers. For the first

time, with laborers in demand, workers found themselves in a position to bargain for

whatever wages they desired. In passing the statute, King Edward III moved decisively

to limit this shift in bargaining power. The statute provided that if a person could work

he or she was required to do so and could charge no more than a reasonable rate for

services. As mentioned, criminal penalties were attached. The statute also provided for

penalties for the employer who paid higher wages than those considered reasonable.

American colonial law closely followed its British progenitors. Each of the

colonies, especially those in New England, adhered to the concept of compulsory labor.

In America, however, it was a religious principle that moved the colonial legislatures

rather than the economic forces that generated the law in England. Idleness, being "the

parent of all vices," was punished by whippings and fines.

With the decriminalization of the refusal to work, courts found that as a practical

matter it was difficult to tell a worker to fully comply with his civil obligation to perform

his employment responsibility. If forced to think back to our contracts class in law

school, we will remember the opinion in De Rivalinoli v. Corsetti, 4 Paige (N.Y.) 264

(1833) where the court reasoned that

I am not aware that any officer of this court has that perfect. knowledge ofthe Italian language, or possesses that exquisite sensibility in the oracularnerve which is necessary to understand, and enjoy with proper zest, thepeculiar beauties of the Italian opera, so fascinating to the fashionableworld. There might be some difficulty, therefore, even if the defendantwas compelled under the direction and in the presence of a master in

chancery, in ascertaining whether he performed his engagement accordingto its spirit and intent. It would also be very difficult for the master todetermine what effect coercion might produce upon the defendant'ssinging, especially in the livelier arias; although the fear of imprisonmentwould unquestionably deepen his seriousness in the graver parts of thedrama.

Id. at 270. Other courts adopted that reasonmg and likewise refused to enforce

employees' promises to work. See. e.g., Allegheny Base-Ball Club v. Bennett, 14 Fed.

Rep. 257 (W.O. Pa. 1882). The initial attempt of employers to circumvent the refusal to

require employees to work for them by seeking injunctions prohibiting the workers from

working for any other employer met with little success except in the limited situation

where an individual promised to perform unique or specialized services that could not

likely be duplicated by another. See, Lumley v. Wagner, I De G, M and G 604 (1852);

American Broadcasting Co. v. Wolfe, 52 N.Y.2d 394, 438 N.Y.S.2d 482, 420 N.E.2d 363

(1981).

B. THE BASES FOR EMPLOYMENT AT WILL

Requiring an individual to perform services for which he contracted was one

thing, giving him a right to continued employment was another. Initially, in England, it

was presumed that an indefinite hiring was for a term of one year and that continuation of

the relationship beyond the year gave rise to an additional one year term. Dismissal

during the term could occur only for "cause." By the nineteenth century, the English rule

permitted dismissal only upon furnishing notice customary in the trade 01; in the absence

of custom, reasonable notice. As permitted under the earlier rule, dismissal for "cause"

could take place at any time and without notice.

The English rule never took root in the United States. The Law of Master and

Servant, a treatise written in 1877 by Horace G. Wood, popularized and hastened the

adoption of a contrary rule that a hiring for an indefinite period was presumptively hiring

at will. Although heavily criticized in later years, it remained the law of the land for

almost a century and still prevails in a not insubstantial number of jurisdictions. Wood

stated

"With us the rule is inflexible, that a general or indefinite hiring is primafacie a hiring at will, and if a servant seeks to make it out a yearly hiring,the burden is upon him to establish it by proof. A hiring at so much a day,week, month, or year, no time being specified, is an indefinite hiring, andno presumption attaches that it was for a day even, but only at the ratefixed for whatever time the party may serve....[I]t is an indefinite hiringand is determinable at the will of either party, and in this respect there isno distinction between domestic and other servants.

H.G. Wood, The Law ofMasler and Servant, Sec. 134, at 272 (1st ed. 1877); Sec. 136, at

283 (2d ed. 1886).

The success of Wood's Rule, as it came to be known, was greatly a result of the

times. The industrial expansion and laissez-faire economics were fertile agar providing,

both the employer and the employee with freedom of action.

C. CONSTITUTIONAL SUPPORT FOR EMPLOYMENT AT WILL

Wood's Rule received apparent constitutional blessings from two early twentieth

century decisions. In 1908, the Supreme Court addressed the constitutionality of a

section of the Erdman Act, a precursor to the Railway Labor Act, which made it a federal

offense to discharge an employee because of membership in a union. The Court held that

Congress violated the due process clause of the Fifth Amendment in attempting to

compel an employer, in the absence of a contract, to accept or retain the services of

another. It reasoned that "the right of the employee to quit the service of the employer,

for whatever reason, is the same as the right of the employer, for whatever reason, to

dispense with the services of such employee." Adair v. Uniled States, 208 U.S. 161, 174­

75 (1908). In Coppage v. Kansas, 236 U.S. I (1915), the Court, in a decision

invalidating a state statute similar to the Erdman Act, reaffirmed the employer's

constitutional right to hire and fire at will. See also, SI. LOllis S. WR. W Company v.

Griffin, 106 Tex.. 477,480, 171 S.W. 703,706(1914).

Wood's Rule also found support in the principles of contract law. Lack of

consideration or the absence of mutuality of obligation in view of the employee's

constitutional right to be free- from involuntary servitude were often cited as reasons for

refusing to consider an employee's challenge to the employment at will doctrine.

III. THE EROSION OF THE AMERICAN RULE

When the attack on Wood's Rule was launched in earnest it came from all sides.

Constitutional underpinnings were eroded. Modern contract law principles of intention

and reliance were cited by courts in response to the inflexibility of the rule. Statutory

exceptions to the rule have been and continue to be carved at all levels of government.

The courts are finding policy reasons to restrict an employer's previously unfettered right

to terminate the at-will employee.

Two excellent treatises on the history and erosion of the employment at-will

doctrine are Slater, Joseph, the "American Rule" that swallows the exception,

http://low.bepress.comJexpresso/eps/1696 (2006) and Perritt, Jr., Henry, Employee

Dismissal: Law & Practice, Fifth Edition, and annual supplements.

A. THE CONSTITUTION REDEFINED

Whereas in the first one and a half decades of the twentieth century the Supreme

Court embraced challenges to the constitutionality of the precursors of the Railway Labor

Act it rejected such a challenge on the Act itself in Texas and New Orleans R.R. Co. v.

Brotherhood of Railway and S.s. Clerks, 281 U.S. 548 (1930). Seven years later, in

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. I (1937), the court upheld the Wagner

Act's prohibition of discharge of employees on account of union activity and its

provision for reinstatement with back pay of such employees.

Although neither case dealt specifically with an employer's power to terminate at­

will employees, the rulings did signal a change in the Court's philosophy enunciated in

the Adair-Coppage line of cases. It has been the prevailing view since Jones & Laughlin

that legislation, either federal or state, proscribing discharge of employees for specific

reasons does not raise constitutional questions.

B. THE CHANGING EMPHASIS ON CONTRACT LAW PRINCIPLES

The mutuality doctrine has come under heavy siege. In some jurisdictions it has

been taken prisoner and executed. See 36-4 Record of the Association of the Bar of the

City of New York, 170, 174 (April, 1981). The concept has been repudiated by

Restatement (Second) of Contracts, § 79(c) (1979).

In Toussaint v. Blue Cross and Blue Shield of Michigan, 408 Mich. 579, 292

N.W.2d 880 (1980), the Supreme Court of Michigan held that employee reliance on the

existence of an employer policy requiring discharge would only be for "cause" created an

environment "instinct with an obligation,"

We hold that employer statements of policy, such as the Blue CrossSupervisory Manual & Guidelines, can give rise to contractual rights inemployees without evidence that the parties mutually agreed that thepolicy statements would create contractual rights in the employee, and,hence, although the statement of policy is signed by neither party, can beunilaterally amended by the employer without notice to the employee, andcontains no reference to a specific employee, his job description orcompensation, and although no reference was made to the policystatement preemployment interviews and the employee does not learn ofits existence until after his hiring.

lei. at 892; see also, Snell v. UACC Midwest, Inc., 487 N.W.2d 268 (1992). While

Toussaint has been followed in most jurisdictions, it has not become universal law by any

means. Some states tenaciously maintain adherence to the principle of unfettered at-will

employment despite several opportunities to embrace the policy manual exception while

others evolved in fits and starts. See, for example, Hayes v. Eateries, Inc., 905 P.2d 778

(Okla. 1995); Todd v. South Carolina Farm Bureau Mutual Insurance Company, 276

S.c. 284, 278 S.E.2d 607 (1981); Small v. Springs Industries, Inc., 357 S.E.2d 452

(1987); School Committee of the City of Providence v. Board of Regents for Education,

112 R.I. 288, 308 A.2d 788 (1973); Roy v. Woonsocket Inst. for Sav., 525 A.2d 915

(1987); Galloway v. Roger Williams Univ., 777 A.2d 148 (2001); County of Giles v.

Wines, 546 S.E.2d 721 (Va. 2001). Other states such as New York have accepted the

modification on limited bases. See Weiner v. McGraw Hill, Inc., 443 N.E.2d 441 (1982);

Rooney v. Tyson, 697 N.E.2d 571 (1998).

Employers have been able to avoid liability with ever increasing success by

adding language to employee handbooks that contain express provisions limiting

employment rights. Commonly known as "disclaimers," the notices generally take the

form of something such as

nothing in this employee manual should be construed as creating acontract of employment or in any way modifying the at-will nature of therelationship between you and the company. Only the president of thecompany can, in writing, modify the at-will nature of your employment.

Courts typically require that the disclaimer be prominently displayed and/or highlighted.

Most wise employers, of course, ask each new employee to sign a form indicating that he

has read the employee manual or handbook, understands its concepts and recognizes that

the employment relationship is at-will and can be terminated at any time with or without

notice by either the employee or the company. While some manuals will contain

language advising the employee that the company reserves the right to change the policy

at any time without giving the employee notice, some courts have found the reservation

to be ineffective where an employee relied on the former policy without notice of its

change or, even, without additional consideration. As can be expected, an excellent

summary of the defenses and decisions in which they were accepted or rejected is found

in Henry Perritt's treatise at § 6.17.

A second contractual approach to limiting an employer's authority to discharge at

will has been to find an implied obligation of good faith and fair dealing as an inherent

part of the employment relationship. See, Fortune v. National Cash Register Company,

373 Mass. 96, 364 N.E.2d 1251 (1977); Cleary v. American Airlines, III Ca.App.3d 443

(1980); Lucas v. Brown & Root, Inc., 736 F.2d 1202 (8th Cir. 1984); Wynn v. Boeing

Military Airplane Company, 595 F. Supp. 727 (D. Kan. 1984); Charles v. Interior

Regional Housing Authority, 55 P.3d 57 (Ak. 2002); Woerth v. City of Flagstaff, 808 P.2d

297 (Ariz. 1990); Foley v. Interactive Data Corp., 765 P.2d 373 (Cal. 1988); Decker v.

Browning-Ferris Industries, 931 P.2d 436 (Colo. 1997); E.I. Du Pont de Nemouris v.

Pressman, 679 A.2d 436 (Del. 1996); SB. Milford v. de LaSala, 666 P.2d 1000 (Ak.,

1983); Eklund v. Vincent Brass and Aluminum Company, 351 N.W.2d 371 (Minn. App.

1984). But see Ring v. R. J. Reynolds Industries, Inc., 597 F. Supp. 1277 (N.D. Ill., E.D.

1984); Thompson v. St. Regis Paper Company, 102 Wn.2d 219, 685 P.2d 1081 (1984);

American Cast Iron Pipe Co. v. Williams, 591 So.2d 854 (Ala. 1990); Snow v. Rude,

McClosky, Smith, Schuster & Russell, P.A., 896 So.2d 787 (Fla. 2005); Harrison v. Sears

Roebuck & Co., 546 N.E.2d 248 (Ill. 1989); Hostettler v. Pioneer Hi-Bred International,

Inc., 624 F. Supp. 169 (S.D. Ind. 1985); Phipps v. IASD Health Services Corp., 558

N.W.2d 198 (Iowa 1997). Only a minority of states have adopted this exception to

employment at will.

C. THE TORT THEORY EROSION OF THE EMPLOYMENT AT WILLDOCTRINE

For over 100 years most courts refused to allow employees to circumvent the

employment at will rule by alleging prima facie tort. See, e.g., Murphy v. American

Home Products Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232 (1983); Andress v. Augusta

Nursing Facilities, Inc., 156 Ga.App. 775,275 S.E.2d 368 (1980).

Many courts themselves have now circumvented the general rejection of the tort

doctrine by creating public policy exceptions to the employment at will doctrine. The

causes of action, usually sounding at tort, are normally based on the principle that some

grounds for discharging an employee are so contrary to public policy as to be actionable.

Wiskotoni v. Michigan National Bank West, 716 F.2d 278 (6th Cir. 1983). In order to

prevail on a public policy theory plaintiffs were required to "show that defendant was

motivated by bad faith, malice, or retaliation, and must demonstrate that [they] were

discharged because they performed an act that public policy would encourage, or refuse

to do something that public policy would condemn." Vandergrift v. American Brands

Corporation, 572 F. Supp. 496 (D.N.H. 1983); see also, Monge v. Beebe Rubber

Company, 114 N.H. 130,316 A.ed 549 (1984); Keneally v. Orgain, 606 P.2d 127 (Mont.

1979); Tameny v. Atlantic Richfield Co., 27 Ca.3d 167 (1980); Thompson v. St. Regis

Paper Co., supra. But see Reich v. Holiday Inn, 454 So.2d 982 (Ala. 1984) (an employer

may dismiss an employee at will who refuse to participate in an alleged scheme to

defraud others); Forde v. Royal's, Inc., 537n F. Supp. 1173 (S.D. Fla. 1982) (An

employee at will allegedly dismissed for refusing an employer's sexual advances does not

have a cause of action for wrongful discharge).

Professor Perritt has been extremely influential in shaping the public policy tort

exception to the employment at-will doctrine over the past fifteen or more years. He

suggested a framework for analyzing a public policy claim in one of the earlier editions

of his treatise that has been widely adopted. He proposed:

I. The plaintiff must prove the existence of a clear public policy (the

clarity element).

2. The plaintiff must prove that discouraging the conduct in which

she engaged would jeopardize the public policy (the jeopardy element).

3. The plaintiff must prove that the public-policy-linked conduct

caused the dismissal (the causation element).

4. The defendant must not be able to offer an overriding justification

for the dismissal (the absence of justification element).

See Perritt, Jr., §§ 7.05-7.08 and numerous cases cited therein.

Some states have doggedly resisted changing the common law with regard to the

creation of a public policy tort. Andress v. Augusta Nursing Facilities, [nc., 156 Ga. App.

775, 275 S.E.2d 368 (Ga. 1980) (An employee discharge for failing to comply with the

employer's request that the employee violate state and federal nursing home regulations

may not sue for wrongful discharge since an at will employee may be discharged by the

employer without cause and regardless to motive in the state of Georgia) is still adhered

to by the Georgia Supreme Court; Reilly v. Alcan Aluminum Corp., 528 S.E.2d 238 (Ga.

2000). Similarly, Reich v. Holiday [nn, 454 So.2d 982 (Ala. 1984) (An employer may

dismiss an employee at will who refuses to participate in an alleged scheme to defraud

others); is still the law in Alabama. See Wright v. Dothan Chrysler Plymouth Dodge,

[nc., 658 So.2d 428 (Ala. 1995). Louisiana courts refuse to create exception to the

employment at will doctrine where there is no statutory or constitutional authority to do

so. Gil v. Metal Service Corp., 412 So.2d 706 (La.App.), cert. denied, 414 So.2d 379

(La. 1982) (An at will employee fired for his refusal to assist in removing identification

marks from imported steel does not have a cause of action for wrongful discharge.); New

York still refuses to recognize a public policy exception to the employment at will rule,

any exception best left to the legislative process. Murphy v. American Home Products

Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232 (1983) (Claim that assistant treasurer of

company was fired for exposing accounting irregularities does not state cause of action);

Horn v. New York Times, 790 N.E.2d 753 (NY 2003) (Plaintiff, a physician who was

required to disclose confidential patient records, did not have a common law tort of

wrongful discharge.)

The public policy exception has taken many different forms.

1. Discharge In Retaliation For Pursuing Rights Under A Workers CompensationAct.

A frequently advanced public policy exception involves discharges in retaliation

against employees who file under worker's compensation statutes. Midgett v. Sackett­

Chicago, Inc., 105 1l1.2d 143,473 N.E.2d 1280 (1984) cert. denied, 472 U.S. 1032, 105

S.Ct. 3513 (1985); Frampton v. Central Indiana Gas Co., 260 Ind. 249,297 N.E.2d 425

(1973); Sventko v. Kroger Company, 69 Mich. App. 644, 245 N.W.2d 151 (1976); Arie v.

Intertherm, Inc., 648 S.W.2d 142 (Mo. 1983); Roseborough v. N.L. Industries, 10 Ohio

St.3d 142,462 N.E.2d 384 (Ohio 1984).

Some courts have upheld wrongful discharge suits in violation of public policy

where the theory was that the discharge by the most recent employer was based on a

worker's compensation claim filed against a previous employer. Goins v. Ford Motor

Company, 131 Mich. App. 185, 347 N.W.2d 184 (Mich. 1983); Darnell v. Impact

Industries, Inc., 105 ll1.2d 158,473 N.E.2d 125 (1lI.App.2d Dist. 1983) (Affd 473 N.E.2d

935 (1984)); see also, Bowler v. Fireman's Fund American Insurance Company, 558

F.Supp. 724 (N.D. Ill. 1983) (Employee was not required to actually file a claim for

worker's compensation benefits prior to an action for retaliatory discharge as long as she

stated in her complaint that she intended to file a worker's compensation claim.).

Other courts have refused to recognize a cause of action for wrongful discharge

resulting from an employee filing a worker's compensation claim. Meeks v. Opp Cotton

Mills, Inc., 459 So.2d 814 (Ala. 1984). Still other courts have held that where there is a

workers compensation statute expressly prohibiting discharge in retaliation for pursuing

rights thereunder, a common law action for wrongful discharge is preempted. Taylor v.

St. Regis Paper Company, 560 F. Supp. 546 (C.O. Ca. 1983).

The defense of judicial estoppel has been effectively used where the plaintiff, in

some forum or format, made a sworn statement that she was permanently disabled. See,

e.g., Watwood v. White Consolidated Industries, Inc., 699 S.2d 210 (Ala. 1997).

Moreover, an employee terminated in accordance with a general absenteeism policy will

have a difficult time stating a claim simply because the injury occurred on the job thus

implicating worker's compensation statutes. See Wilmot v. Kaiser Aluminum & Chem.

Corp., 821 P.2d 18 (Wa. 1991).

2. Whistleblowing.

Many courts have adopted an exception to the general employment at will

principle when the plaintiff alleges discharge in retaliation for reporting violations of

regulations or laws by their employers. Garibaldi v. Lucky Food Stores, Inc., 726 F.2d

1367 (9th Cir. 1984) (A cause of action might arise where an employee is discharged for

reporting a shipment of adulterated milk to health officials); Parnar v. Americana Hotels,

652 P.2d 625 (Haw. 1982) (Employee had discussions with company attorney regarding

possible antitrust violations and alleged that discharge was attempt to induce him to leave

the jurisdiction.); Palmateer v. International Harvester, 85 1l1.2d 124,421 N.E.2d 876

(1981) (An employer may not discharge an employee who reports to law enforcement

personnel that a fellow employee is violating the criminal code); Sides v. Duke Hospital,

74 N.C.App. 331, 328 S.E.2d 818 (1985) (It is a violation of public policy to terminate an

employee for refusing to testify falsely or incompletely in a court case); Shaw v. Russell

Trucking Line, Inc., 542 F.Supp. 776 (W.D. Penna. 1982) (Employer wrongfully

dismissed an at will employee for reporting truck overloads in violation of statute to

police).

In Schultheiss v. Mobil Oil Exploration and Producing Southeast, Inc., 592

F.Supp. 628 (W.D. La. 1984). It was held that a former oil rig employee who was

discharged after he was interviewed by a representative of the Alabama attomey

general's office during an investigation failed to establish a claim for retaliatory

discharge. Had he been discharged for what he told the attorney general, he may have

stated a claim; however, "he was not an employee who was fired after he blew the

whistle, but rather [was] caught after the whistle had already been blown." Moreover, the

court found that there was no public policy against "scapegoatism" or selective.discharge,

and the fact that he was discharged while higher level personnel were not for illegally

pumping waste materials overboard did not contravene any established public policy.

Of course, many states and the federal government have enacted whistleblower

protection statutes affecting either or both classes of employees (such as public

employees or banking employees) or classes of prohibited actions (aviation or nuclear

reactor safety, securities fraud, and the like). Some states require the use of a statutory

scheme if it is available and provides full relief. See, e.g., Korslund v. DynCorp. Tri-City

Services, Inc., 125 P.3d 119 (Wash. 2005).

3. Refusal To Violate The Law Or Otherwise Commit An Illegal Act.

Where an employee has alleged that discharge was the result of a refusal to obey

an order of the employer to violate the law, he or she states a cause of action in a growing

number of jurisdictions. Buethe v. Brit Airlines, Inc., 749 F.2d 1235 (7th Cir. 1984)

(Plaintiff's claim that he was discharged for refusing to fly a plane with inoperative

items, stated a cause of action for wrongful discharge under Indiana law said the 7th

Circuit, reversing a district court which had held that the action was preempted by the

Federal Aviation Act of 1958); Tameny v. Atlantic RicFifield Co., supra; Peterman v.

International Brotherhood of Teamsters, 174 Ca.App.2d 184, 344 P.2d 25 (1959) (An

employee at will who refuses to commit perjury before a legislative committee cannot be

terminated by the employer for such a refusal); Hansrote v. American Industrial

Technologies, Inc., 586 F. Supp. 113 (W.o. Penna. 1984) affd 770 F.2d 1070 (3d Cir.

1985) (Discharge of employee for refusing to improperly influence another company's

officials to award a bid to his employer supports a finding of wrongful discharge in

violation of public policy); Merkel v. Scovill, Inc., 573 F. Supp. 1055 (S.D. Ohio 1983)

(Federal court believes that Ohio Supreme Court would find a public policy exception to

the at-will doctrine where a discharge is based on an employee's refusal to commit

perjury); Vigil v. Arzola, 699 P.2d 613 (1983) rev. on other grounds, 687 P.2d 1038

(N.M. 1984) (Discharge for sending government officials letters critical of certain

internal corporate procedures including the misuse of federal funds stated a cause of

action for wrongful discharge).

In a related line of cases, courts have recognized a public policy exception where

employees have alleged they were discharged for their refusal to sign a false statement at

the employer's request. Delaney v. Taco Time International, Inc., 681 P.2d 114 (Ore.

1984) (Refusal to sign an arguably defamatory statement concerning a coworker).

4. Discharge For Giving Testimony. Serving On A Jury, Or Exercising Some Other

Lawful Right.

Some courts have been quite creative in carving exceptions to the employment at

will doctrine where an employee is terminated for what he or she claims to be retaliation

for the exercise of a constitutional, statutory or common law right.

Smoking has resulted in several cases. See Hentzel v. The Singer Company, 138

Ca.App.3d 290, 188 Ca.Rptr. 159 (1982) (An at will employee terminated in retaliation

for attempts to obtain a reasonably smoke-free environment could state a cause of action

for wrongful discharge); but see Gordon v. Raven Systems & Research, Inc., 462 A.2d 10

(D.C. 1983) (While an employer has a duty to provide employees with a reasonably safe

workplace, there is no duty to conform the workplace to the particular needs or

sensitivities of an individual employee. Thus, an employer may terminate an employee

who refuses to work in an area in which other employees smoke cigarettes). As can be

inferred, safety issues playa major role.

Most cases that have faced the issue have held that public policy prohibits the

discharge of an employee at will for serving on a jury. Nees v. Hocks, 272 Or. 210, 536

P.2d 512 (1975); Segal v. Gilbert Color Systems, [nc., 746 F.2d 78 (1st Cir. 1984); Webb,

In Re, 586 F. Supp. 1480 (N.D. Ohio, w.o. 1984); Reuther v. Fowler & Williams, Inc.,

255 Pa. Super. 28, 386 A.2d 119 (Penna. 1978). Once again, New York is the notable

exception. DiBlasi v. Traffax Traffic Network, 681 NYS.2d 147 (NY 1998).

There have been several claims of discharge and retaliation for the exercise of

First Amendment free speech rights. Novosel v. Nationwide Insurance Company, 721

F.2d 894 (3d Cir. 1983) (Claim is actionable where allegation is discharge because of

refusal to participate in employer's lobbying efforts); Ring v. River Walk Manor, Inc.,

596 F. Supp. 393 (D. Md. 1984) (Even though no state action employee states claim for

violation of public policy against interference with free speech and free association

rights).

5. Wrongful Discharge Actions Based On Claims Of Discrimination.

Several courts have dealt with the issue oof illegal discrimination forming the

basis of a wrongful discharge claim. In many of the cases courts have wrestled with the

principle of preemption discussed below. Since this paper is limited to a discussion of

employment at will cases, it will not delve substantially into the discrimination cases;

however, for illustrative purposes, a few decisions are cited. The Lucas v. Brown & Root,

Inc., 736 F.2d 1202 (8th Cir. 1984) court found that requiring sexual favors in exchange

for employment violated public policy against prostitution); Wagenseller v. Scottsdale

Memorial Hospital, 710 P.2d 1025, 119 LRRM 3166 (Arizona, 1985) (The court held

that an employee who was discharged for allegedly refusing to participate in a skit which

involved "mooning," an act in violation of the public policy against Arizona's indecent

exposure statute, stated a cause of action). See also, Holien v. Sears Roebuck & Co., 298

Or. 76.689 P.2d 1292 (1984); Cummillgs v. Walsh COlls/ruc/ioll CompallY. 561 F. Supp.

872 (S.D. Ga. 1983).

IV. CONCLUSION

Much has been written about the shaky underpinnings of the employment at-will

doctrine. Nevertheless. despite its clear erosion and the many exceptions that have been

created over the last thirty years and more. it is still alive and well. While bills requiring

a just cause standard for termination are regularly introduced in state legislatures across

the country. there has been virtually no success by proponents of this type of legislation.

There are proposed model employment termination acts but there is yet to be any

consensus with regard to termination standards. remedies or even the appropriate forum.