Working Group on Chapter 4 of the Proposed Restatement of Employment Law: The Tort of Wrongful Discipline in Violation of Public Policy

Abstract

The purpose of this commentary on Chapter 4 of the Proposed ALI Restatement of Employment Law, concerning the tort of wrongful discipline in violation of public policy, is to closely evaluate the current draft in light of the appropriate purposes for a Restatement. Although some value exists in merely stating the consensus respecting these rules, the mission of the ALI extends beyond that, to better adapt the law to social needs and secure the better administration of justice. Our principal problem with the current Restatement draft is that it does not adequately recognize the dynamic nature of this area of law and uses language which some lawyers and judges (assuming the proposed Restatement has some impact) may interpret to foreclose further development. We therefore wish to help foster a Restatement that is not only rooted in precedent, but also seeks to reframe the law while retaining enough flexibility and open texture to allow the law to evolve in response to new realities.

As will become evident to the reader of this commentary, we believe the core theory of a tort claim for wrongful discharge based on public policy is well established. On the other hand, we are also of the opinion that there are numerous areas of disagreement among states about subsidiary issues. These secondary questions are well identified even if a consensus has not always emerged as to how these secondary questions should be answered.

This commentary is divided into three sections, representing each of the major sections of Chapter 4. The first part, following this introduction, analyzes Section 4.01, which sets out the basic contours of a claim for wrongful discipline in violation of public policy. The next part analyzes Section 4.02, which advances the basic parameters of employee activities protected under the tort. The part that follows analyzes Section 4.03, which considers the appropriate sources of public policy for the tort.

Our principal objections to this draft stem from a concern about making sure the tort protects as many workers for as many of their activities as possible. We are most concerned as a group with the following: (1) in section 4.01, with the indeterminacy of the language concerning "adequate alternative remedies" and the apparent confusion of the draft which conflates principles of federal preemption and legislative preclusion; 4 (2) in section 4.02, with the potential lack of protection for employees’ private and off-duty activities and for attorney discharges related to reporting of ethical issues; and (3) in section 4.03, with the exclusion of international law from sources of public policy and the requirement that public policy must always be "clearly established and clearly formulated" to serve as the basis for this tort claim.

Keywords: Restatement on Employment Law, public policy tort, employment law, wrongful discharge in violation of public policy