Rethinking Wrongful Discharge: A Descriptive-Continuum Approach

Abstract

Over two hundred articles have been written critiquing employment at-will and wrongful discharge since 1985. However, little radical change has occurred in state courts on this issue in some time. In spite of strong judicial resistance to modify employment at will, wrongful discharge scholarship is still saturated with normative criticism of the doctrine.

Scholarship in this area can deliver a valued benefit if it focuses on understanding wrongful discharge systematically as a coherent body of law. This article adopts a "descriptive-continuum" approach that organizes wrongful discharge law into five distinct and interrelated categories. This article also provides a sequential, systematic method for classifying employer discharges within the broad continuum of wrongful discharge law. Finally, this article uses a case study to highlight the benefits of the descriptive-continuum approach for courts, employers and employees alike.

Keywords: Employment law, wrongful discharge, good faith, public policy

JEL Classification: K31, K39