Employee Rights and Employment Policy Journal

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

Abstract

By
Paul M. Secunda

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. The authors' 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.

Although the core theory of a tort claim for wrongful discharge based on public policy is well established, 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. The authors 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: (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.

By responding to this identified concerns with the current draft, it is less likely that this Chapter of the Proposed Restatement will limit the scope of the public policy tort through various means and simultaneously, make sure the tort protects as many workers for as many of their activities as possible.