Concepts and Procedures in Whistleblower Law

By Stephen M. Kohn | Go to book overview

Chapter 2
Whistleblower Protection under
the Common Law: A State-by-
State Review

The overwhelming majority of states, either through judicial modifications to the common law or through legislation (or both), have altered the strict common law at-will employment doctrine, which entitled employers to fire employees for any reason or no reason.1 The common law has been narrowly altered to permit discharge for any reason—except for a reason that violates public policy.2

Under the public policy exception, whistleblowers in most states have a tort action for wrongful discharge3 if they can demonstrate that they were fired for "blowing the whistle" in violation of a clear mandate of public policy. This new tort action altered the standard employment law of "master-servant," which had been accepted in the late nineteenth century.

The origins of the at-will doctrine are traced to the publication of Master and Servant in 1877 by Horace G. Wood.4 "Wood&s Rule," which provided for the termination of an employee for any reason or no reason, was, in the 1880s and 1890s, uncritically adopted by every state. However, looking backward, "there is now a broad consensus among courts and commentators that the authorities relied on by Wood did not support his thesis."5

In the twentieth century, the at-will doctrine came under "intense attack from legal scholars,"6 and it became the "almost unanimous view" from commentators that the rule should be modified, especially in light of "important public policy."7 For example, as early as 1937 the doctrine was under sharp criticism: "The system of 'free' contract described by nineteenth century theory is now coming to be recognized as a world of fantasy, too orderly, too neatly contrived and too harmonious to correspond with reality."8

-21-

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