EMPLOYMENT AT WILL: THE RELATIONSHIP BETWEEN SOCIETAL EXPECTATIONS AND THE LAW

• Author: ELLETTA SANGREY CALLAHAN
• Published date: 01 September 1990
• Date: 01 September 1990
• DOI: http://doi.org/10.1111/j.1744-1714.1990.tb00835.x

EMPLOYMENT AT WILL: THE RELATIONSHIP

BETWEEN SOCIETAL EXPECTATIONS AND THE

LAW

ELLETTA SANGREY CALLAHAN*

INTRODUCTION

Fifty-eight percent of the respondents to a recent poll believe that

the ethical standards of American business executives are only fair

or

poor.’ The public outcry about business ethics is paralleled in

legal

journals.‘ At the same time, an employee who is discharged

for

reporting

or

refusing to engage in illegal

or

unethical activity within

the organization receives little

or

no legal protection in many

U.S.

jurisdictions?

This contradictory state of affairs arises from a traditional legal

principle establishing that noncontractual private sector workers

-

so-called “at will” employees

-

are subject to dismissal without

re-

course against their employers. Some jurisdictions make an exception

to this rule by prohibiting employers from retaliating against at-will

employees who report

or

decline to participate in illegal

or

unethical

Assistant Professor

of

Law and Public Policy, Syracuse University. The comments

of

John W. Collins and the assistance

of

Susan

B.

Long with survey design and method

are

gratefully acknowledged.

Wildstrom.

A

Risky

Tack

for

Democrats:

Bashing Business

Won’t

Get

Votes,

Bus.

WEEK, July

20,

1987, at 71 (Business Weekmarris

poll).

*

See,

e.g.,

Conry

&

Nelson,

Business

Law

and

Moral

Orowth.

21

AM.

Bus.

L.J.

1

(1989):

Moskowitz.

Employmal-At-WiU

&

Codes

of

Ethics:

The

Professional’s

Dilama,

23

VAL. U.L. REV.

33

(1988):

Pellegrino,

Character,

Virtue

and

SeZjYnterest

in

the

Ethics

of

thR

Profmsiuns,

5

J.

CONTEMP. HEALTH L.

&

POL’Y

53

(1989); Wiesner

&

Cava.

Stealing

Trade

Secrets

Ethically,

47

MD.

L.

REV. 1076 (1988).

See

infra

notes

18-28

and accompanying text.

456

I

Vol.

20

I

American

Business

Law

Journal

activity. Other states, however, continue to adhere strictly to the at-

will doctrine in such cases:

The lack of uniformity among state responses in this area may be

explained, at

least

in part, by the competing considerations involved:

the employer’s interest in maximizing control, efficiency, and produc-

tivity: the worker’s interest in being able to report

or

refuse to

engage in illegal

or

unethical conduct without penalty; and society’s

interest in promoting lawful and ethical behavior. Where traditional

at-will principles are followed, the employer’s interest is given the

highest priority.

Freedom of contract and enterprise are the policy bases for the

traditional rule.5 A predictable result of this approach, however,

is

that legal and ethical behavior is discouraged. An employee who

is

threatened with job-related consequences for reporting

or

refusing

to engage in wrongful activity will be disinclined to do

so;

an employer

who is insulated from legal responsibility for such threats may impose

them more readily. Does adherence to the traditional at-will rule in

these circumstances reflect societal expectations?0 This inquiry raises

two further questions: whether the law governing employment

at

will should correspond to societal expectations; and, assuming that

such beliefs are pertinent, whether they can be systematically deter-

mined.

This article begins by briefly reviewing the current law regarding

the discharge of at-will employees for reporting

or

declining to

participate in illegal

or

unethical activity.’

It

then argues that societal

expectations are relevant to the law’s content concerning this issue.8

In this connection, the article presents the results of a survey

designed to discover societal expectations concerning at-will employ-

ment, a survey that demonstrates an exceptional level of support for

workers discharged under the circumstances de~cribed.~ An analysis

of the relationship between the survey results and existing law

follows.1o The article concludes with recommendations for legal reform

in this areaell

See

infia

notes

1528

and

accompanying text.

Note.

Implied

Contract

Rights

to

Job

Security,

26

STAN.

L.

REV. 335, 342-43 (1974);

Comment,

Protecting

the

Primb

Sector

At

WiU

Employee

Who

“Bhs

the

Whistle’’:

A

Cause

of

Action

Base&

Upon

Determinanh

of

Public Policy,

1977

Wis.

L.

REV. 777, 78182.

Throughout this article, the terms “societal expectations,” “societal values,” and

“societal beliefs” are used interchangeably. The analysis focuses on identifying the types

of

employee conduct that society believes the law

should

protect, rather than the conduct

the law in fact does protect.

’

See

infia

notes

12-28

and accompanying text.

See

arlfra

notes

2938

and accompanying text.

See

infru

notes 3945 and accompanying text.

See

infiu

notes

66-89

and accompanying text.

See

infi-a

notes 90-94 and accompanying text.