The Public Policy Exception to Employment at Will: Balancing Employer's Right and the Public Interest
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THE PUBLIC POLICY EXCEPTION TO EMPLOYMENT
AT WILL: BALANCING EMPLOYER'S RIGHT AND
THE PUBLIC INTEREST
Lorrie Willey, Western Carolina University
ABSTRACT
Despite the fact that employment at will remains the fundamental tenet in American
employment law, more and more circumstances have served to remove the termination of an
employee from the at will arena. The employer's power and control over the employee is now
subject to numerous exceptions to the at will doctrine. Perhaps the most elusive exception
requires the balancing of employers' right in controlling an employee and the public's right in
assuring that employers do not act in a manner contrary to the public interest. In considering the
public policy exception to employment at will, American courtsfindpublic policy in varying sources
and apply the public policy exception to a wide variety of termination situations. In this paper, the
courts' application of the public policy exception to employee dismissal disputes is examined.
INTRODUCTION
Workers in the United States are most commonly hired, and fired, based on the employment
relationship deemed at will. While England provided the foundation to most law in the United
States, the questions regarding the duration of employment and whether a firing must be for cause
have been answered in a distinctly American way. Historically, contract law defined the extent of
the employment relationship. In England, absent specific contractual language, the term of
employment was presumed to be one year (Summers, 2000). Early American courts were not sure
if they should apply this rule; some courts followed the English rule, some not (Id). In 1877, Horace
Wood, a jurist, proclaimed that the rule in the United States established a presumption opposite that
of the English courts. In America, employment was of an indefinite period unless the employee
could prove otherwise (Id).
Jay Feinman, in his article The Development of the Employment at Will Rule, argues that the
at will doctrine was adopted as a means to promote capitalism in industrial America (Feinman,
1976, p. 118). This new age demanded workers who served only as a means for the business owner
to advance commercial enterprise (Id., p. 123). In early applications of employment law, the
employees bringing suit were often mid-level managers who wielded, for the times, substantial
salaries and who often had ownership interests in the business (Id., p. 131). The industrial worker,
Journal of Legal, Ethical and Regulatory Issues, Volume 12, Number], 2009](ViewImageLocal?handle=hein.journals/jnlolletl12&div=10&collection=&method=preview&ext=.png&size=3)
The Public Policy Exception to Employment at Will: Balancing Employer's Right and the Public Interest
The Public Policy Exception to Employment at Will: Balancing Employer's Right and the Public Interest