The Public Policy Exception to Employment at Will: Time to Retire a Noble Warrior?

Abstract

This article addresses the current state of, and continuing need for, the public policy exception to the rule of employment at will. The article begins by briefly reviewing the history of employment at will and the development of statutory exceptions, such as state and federal civil rights acts. The article then analyzes the development of the public policy exception and its significant role in providing many of the protections provided today to at will employees, such as protection of constitutional and statutory rights, and whistle blower protection and how the use of the exception led to statutory codification of these protections. Next, a detailed factual and legal analysis of numerous public policy exception opinions in cases factually outside of those statutory protections is provided, analyzing the malleability of the exception. Finally, the article argues that the public policy exception in its current state has all live its usefulness and now threatens to engulf the long-standing doctrine of employment at will.