§ 1.2.5 EROSION OF THE AT-WILL RULE IN THE PRIVATE SECTOR.

• Jurisdiction: Arizona

§ 1.2.5 Erosion of the At-Will Rule in the Private Sector. The National Labor Relations Act³⁰ was the first major limitation on the at-will rule in the private sector. State legislatures began to make statutory exceptions to the rule where the public interest was affected. Limitations on terminating employees for taking time off to vote, granting veteran's preference, and the like were the first such inroads. The second major modification was the Civil Rights Act of 1964.³¹

Professor Charles Craver has pointed out that "[i]f employers have absolute power, they have the ability to wield that power in a very uncaring way."³² Absent a collective bargaining contract, private employees have no power and little or no job security or economic leverage to gain rights or to protect any rights they might have. The only group of workers who have no rights are the unorganized workers, "the person[s] at the bottom of the ladder economically."³³

The decline of unions exacerbated the imbalance of power. Commentators such as Professor Lawrence Blades and Professor Clyde Summers began to question the soundness of the at-will doctrine because of the inherent imbalance of bargaining power between the employee and the employer.³⁴

In the late 1960s and early 1970s, some courts began to question the soundness of the at-will doctrine and its adverse economic impact on workers by recognizing exceptions to the rule where termination contravened a strong public policy or where there were implied promises of job security.³⁵ Thus, the pendulum began to swing from the protection of business during the heyday of the Industrial Revolution to the protection of nonunion workers.

The first judicial inroad appears to have been Kouff v. Bethlehem-Alameda...