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Publication Date

3-2010

Document Type

Article

Abstract

I. INTRODUCTION

An armored car driver leaves his truck in violation of company rules to help save a woman from a knife-wielding attacker and is terminated.

A campus security guard is called to a scene where a man is lifting a woman; he mistakenly believes it is an attack, arrests the man, and is terminated.

A nurse is invited on a camping weekend by her supervisor, refuses to take part in a bawdy dance, and is terminated.

A woman, asked by her employer to sign a statement indicating she acted inappropriately at work, requests to meet with a lawyer first and is terminated.

Each of the above employees brought suit claiming they were improperly terminated. Two prevailed; two did not. All claims were based upon what is commonly known as the public policy exception to the employment at-will rule.

Among the social changes brought about by the various civil rights movements of the 1960s, 1970s, and beyond, were numerous statutory exceptions preventing employers from terminating or failing to hire employees based upon sex, race, age, religion, or physical disability, among other traits. Alongside the development of these protections for employees were other protections based upon the notion that an employer should not be able to circumvent public policy by using his otherwise unfettered right to terminate. This exception, the public policy exception, is still commonly pleaded and litigated.

Section II of this Article will briefly review the history of employment at-will in the United States and the emergence of the statutory exceptions to the doctrine. Section III will provide a history of the development of the public policy exception and explore both how the exception was the basis for many of the statutory protections available today for employees and how the exception significantly impacted the employer-employee relationship. Section IV will summarize and analyze the role that the public policy exception has played in the development of the employer-employee relationship and will also provide the framework for discussing whether the exception, in its present form, is still necessary. Section V will provide an in-depth factual and legal analysis of a sampling of public policy exception case law to explore the malleability of the exception. Section VI, the final section of the Article, will argue that the public policy exception in its current form has outlived its usefulness because many of its historical uses have been codified, leaving the exception as an unnecessary catchall provision.

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