Academic journal article Journal of Legal, Ethical and Regulatory Issues

The Public Policy Exception to Employment at Will: Balancing Employer's Right and the Public Interest

Academic journal article Journal of Legal, Ethical and Regulatory Issues

The Public Policy Exception to Employment at Will: Balancing Employer's Right and the Public Interest

Article excerpt


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, however, became further removed from ownership and more under the authority of the employer/owner who used labor as a means to meet market demand (Id.) Capitalism demanded that workers had no control over their employment or over the manner of their work (Id., p. 133).

Regardless of its early history or the socio-economic factors supporting its use, the theory of employment at will as the basic employment relationship has stood the test of time, basically in tact. It remains a fundamental tenet of contemporary employment law: an employer is free to terminate employees without cause or consequence. When no duration of employment is expressed, both parties are free to hire and be hired only for so long as both wish to remain in such a relationship. "In the absence of any employment contract for a definite period, both employer and employee are generally free to terminate their association at any time and without reason" (Salt v. Applied Analytical, Inc., 1991).


While broad protections against unjustified termination have not been adopted in the United States, the power of employment of will has been somewhat restrained as exceptions to that rule have been established (Summers, 2000). "The terminable-at-will doctrine is not absolute however, and the interests of the people ... are not best served by a marketplace of cut-throat business dealings where the law of the jungle is thinly clad in contractual lace" (Hall v. Farmers Insurance Exchange, 1985). The courts and legislatures have identified the bases of employment dismissals that violate law, regardless of the "at will" relationship, from civil rights to public policy.

Specific federal and state legislation prohibit the firing of an employee for particular reasons. For example, the Civil Rights Act of 1964 prohibits the taking of adverse employment actions against a person on the basis of her race, color, gender, religion or national origin. Later legislation prohibited adverse employment action against workers with disabilities or those of a certain age.

The National Labor Relations Act prohibits the firing of employees for union activity. Other examples of statutory law providing protection for the at-will employee exist, often in the form of provisions that prohibit an employer from using termination as retaliation against employees who exercise their legal rights, such as filing for workers' or unemployment compensation.

Express terms can also change the at-will relationship. …

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