Raising the Floor of Company Conduct: Deriving Public Policy from the Constitution in an Employment-at-Will Arena

Abstract

This Article explores the general doctrine that private employment is at-will, and the common law's exception to that doctrine for wrongful discharge in violation of policy. It discusses the extent to which courts draw on constitutional sources, particularly the federal Constitution, when deciding what strongly held societal values can support a wrongful discharge claim. While courts in such cases frequently invoke constitutional sources as a general matter, some courts have questioned the applicability to the private sphere of constitutional doctrines normally requiring state action. The piece argues that in applying the public policy exception, it only makes sense to find stated public policies in the Constitution, since such policies are routinely derived from other, “lesser” sources of law. At the same time, the Constitution must be used selectively, drawing upon only the clear, uncontroversial constitutional principles that embody foundational individual rights. The article discusses the interaction of this analysis with existing statutory remedies for employees. It then goes through various constitutional rights, arguing how they are appropriate or inappropriate sources for a public policy exception, and, if the former, how courts might so apply them. For example, it argues that Free Speech and Equal Protection principles are suitable templates, but Second Amendment and many criminal procedure rights are not.