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Employment at Will
The employment at will doctrine provides that an employee can be fired for any reason at any time.
Limitations on the employment at will doctrine are:
Tort limitations
Public policy Exception
Labor Torts a) Negligent Hire and Supervision b) employment references c) intentional infliction of emotional
distress,
contractual limitations.
Implied contract
Covenant of Good Faith and Fair Dealing
statutory good cause (Montana),
statutory limitations such as anti-discrimination laws
Tort Erosion of Employment at will-> show was discharged in retaliation for activities
Damages
Standard Monetary
Lost earnings (wouldve earned without adverse action from employer)
Commissions
Benefits
Reasonably anticipated future earnings (unlike Title VII, not likely to reinstate)
subtract lost wages and anticipated future earnings from amount that has been earned or might reasonably
have been earned from other employment
An employee must be capable of performing the job from which he or she was terminated as a necessary
prerequisite
There is no adequate, statutorily-expressed remedy.
Public policy exception comes into play: where at-will employee possesses a tort action when he or she is
discharged for performing an act that public policy would encourage, or for refusing to do something that public
policy would condemn
Establishing a cause of action for Discharge Against Public Policy or Tort of Retaliatory Discharge
Duty: not to subvert public policy (I.E. sexual harassment claims need to be pursued - Gantt)
Breach of duty: subverts public policy (I.E. Employer breached duty when it took retaliatory action against
sexually harassed employee and manager who was filing complaint - Gantt)
Raise one of these FOUR different situations/categories that allow the public policy tort actions, but is not
inclusive of all states approach
Where employees are fired for refusing to commit an illegal act (Gannt)
Where employees are fired for performing a public duty or obligation i.e serving jury duty (Loomis) saving a life
Where employees are fired for exercising a legal/statutory right or privilege (right to workers compensation Torres
or right not to be discriminated against Molesworth)
Look at statute to see if individual covered.
Where employees are fired in retaliation for reporting employer misconduct (whistleblowing) Allum
Desire to encourage people to expose illegal or unsafe practices
Must reasonably suspect illegal conduct.
(any situation where a discharge contravenes public policy) Ill. Ct.
Connect claim to public at large - showing that it is not affecting just the individual, but it has repercussions for the
general population. e.g. private economic rights- mileage reimbursements, stock, or bonus (Sullivan)
The discharge is a violation of a clearly mandated public policy
The Elements to prove a claim:
The Clarity Element: The plaintiff must prove the existence of a clear public policy. An employer violates public
policy goals that are fundamental, substantial, well established, and clearly articulated in existing laws
By identifying a specific provision of a statute, constitution, or administrative regulation
By synthesizing a policy from several different statutes or constitutional provision
By identifying a right or mode of conduct covered by traditional common law

4. By identifying a trade practice

ii. The Jeopardy Element: The plaintiff must prove that discouraging the conduct in which they engaged would
jeopardize the public policy
1. If other avenues available to promote public policy, this element is not satisfied.
iii. The Causation Element: The plaintiff must prove that the public-policy-linked conduct caused the dismissal
iv. The Absence of Justification Element: The defendant must not be able to offer an overriding justification for the
dismissal
iii. Harm: the employee was disciplined; Plaintiffs who prove that they were wrongfully discharged or were wrongfully
constructively discharged can recover lost wages, salary, commissions, and fringe benefits. Employees can also
recover expected reductions in future earnings if this calculation is not too speculative.
1. Employees who are not fired must show that they were constructively discharged. The tort of intentional infliction
of emotional distress does not require that the employee leave her job.
iv. Causation: link between what employer did and why did it (the motivating factor behind the discipline was to
retaliate against the employee for acting in the public's interest)
1. Elements to prove:
a. Knowledge - employer knows or has reason to think that the employee was engaging in the protected activity (give
testimony, report misconduct, asking for workers compensation)
b. Timing - the time that employer took action is close to the time when employee did act for which he was fired.
c. Animus - showing that employer is against, or has strong opinions, about employee or public policy/statute.
d. Pretext
e. Difference in treatment among those similarly situated and one is singled out.
v. Mixed Motive Analysis- (Allum)
1. P must show:
a. Improper reason/protected action was a substantial motivating factor in employer action (firing)
b. D can only prevail by showing that he would have taken adverse action against P anyway absent the unlawful motive
vi. Good Faith Reporting: protected from discharge for good faith reporting of an employer violation where the
employee reasonably suspected that employer engaged in illegal conduct. The reporting must not be motivated by
malice, spite, jealousy or personal gain as opposed to a good faith belief that an infraction has occurred.
vii. Constructive Discharge- if working conditions are such that a reasonable person would feel compelled to resign;
salary reduction, job responsibility reduction, reassignment to a younger supervisor, reassignment to menial or
degrading work, demotion
1. poor performance rating or demotion, even when accompanied by reduction in pay= not a constructive discharge
f. Labor Torts
i. Negligent Hiring1. employer has duty to independently check the drivers criminal record
2. was foreseeable b/c employer could have easily checked his record
ii. Intentional Infliction of Emotional Distress
1. The Restatement (Second) of Torts states that, to prove intentional infliction of emotional distress, the plaintiff must
prove that the defendants conduct was so outrageous in character and so extreme in degree as to go beyond all
possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society. Liability
does not extend to mere insults, indignities, threats, annoyances, and petty oppressions.
2. The plaintiff must prove:
a. the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely
result of his conduct (intentionally and recklessly)
b. the conduct was extreme and outrageous and beyond all possible bounds of decency
c. the actions of the defendant were the cause of the plaintiffs distress
d. the emotional distress was severe and of a nature that no reasonable man could be expected to endure.
e. *Extreme and outrageous generally means unconscionable- test being whether the reasonable person would find the
action outrageous
f. *Extreme and outrageous goes to the manner of the discharge, not the fact that someone was actually let go
iii. Employment references

1. Those employers who do not remain silent and elect to recommend employees owe a duty of reasonable care in
regard to what they say and how they say it
2. They owe a duty of reasonable care to third parties as well as prospective employer to whom the recommend is given
when there is a substantial foreseeable risk of physical harm to third parties by the employee,