For the most part, the common law doctrine of "employment at will" governs employer-employee relations in the private sector. 'this doctrine looks upon employee and employer as equal partners to an employment contract. Just as employees may resign whenever it pleases them, so also employers may dismiss their employees whenever they desire. This latter aspect of the doctrine has been stated forcefully time and time again in various court cases. For example, in Payne v. Western and Atlantic Railroad the court declared that "employers may dismiss their employees at will . . . for good cause, for no cause, or even far cause morally wrong, without thereby being guilty of legal wrong¹." Similarly, in Union Labor Hospital Association v. Vance Redwood Lumber Co. the court said that the "arbitrary right of the employer to employ or discharge labor is settled beyond peradventure²." The doctrine of employment at will was recently invoked by the Supreme Court of Pennsylvania to dispose of Geary v. United States Steel Corporation³. In this case Geary, an employee, charged that he was unjustly dismissed by United States Steel after he went outside normal organizational channels to warn a vice president of the corporation (it turned out correctly) about defects in steel tubing that was about to be marketed.

The doctrine of employment at will is sometimes referred to as "Wood's Rule" because it received its classic formulation in H. G. Wood's treatise on the law of master and servant in 1877. Under its application, unless duration of employment was specified precisely, courts simply held that no express provision of the contract dealt with this matter.They then summarily upheld the discharge at issue with no consideration whatsoever of the equities in the case.

The doctrine of employment at will remains the dominant approach today of most American courts in employee discharge cases. Courts occasionally have upheld suits by discharged employees on grounds of public policy such as when the discharge was for refusal to give perjured testimony⁴, for filing a workman's compensation claim⁵, and for serving on a jury⁶. For the most part, however, courts do not acknowledge even these narrow limitations on the employer's absolute right of discharge. In this regard, an employee who convinced a jury that he was discharged because he would not vote for certain candidates in a city election was nonetheless barred from recovering damages by the appelate court. Along the same line, a secretary who refused to comply with the order of her superior to indicate falsely that she was not available far jury duty found she had no grounds for recovery when she lost her job. In considering her case the court declared that while the reason for her discharge was "quite reprehensible," "selfish," and "short sighted," nonetheless "her employer could discharge her with or without cause . . . It makes no difference if the employer has a bad motive in so doing⁸.

Public employees, in contrast to workers in the private sector, enjoy a substantial right of free expression under the decision of the United States Supreme Court in Picketing v. Board of Education 39 U.S. 563 (1968). This case involved the dismissal of a high school teacher, Picketing, for writing letters to a local newspaper that criticized the board of his school in Illinois. Picketing alleged that the board had built an athletic field out of unauthorized bond funds. He charged the board with creating a "totalitarian atmosphere" and of lying to the public to gain support for high school athletics.

Picketing was fired. In his bid for reinstatement he lost in the Illinois courts but ultimately won in the United States Supreme Court. In reviewing his case the Supreme Court first stated that the First Amendment unequivocally applies to public employment. Citing a prior decision pertaining to this matter, Keyishian v. Board of Regents 385 U.S. 589, 605-606 (1967), the Court noted that "the theory that public employment may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected." Hence, teachers may not be forced to give up the rights under the First Amendment they would otherwise have as citizens to comment on matters of public interest in connection with the schools. The Court did recognize, however, that schools have legitimate interests in regulating employee speech. "The problem . . . is to arrive at a balance between the interests of the teacher as a citizen in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."

In this regard the Court pointed out that Pickering's letter, although sarcastic in tone and occasionally inaccurate nonetheless only attacked the school board. It did not personally criticize any of the individuals with whom he worked on a day-today basis. Thus, it could not be said that to retain Pickering would inevitably lower morale or upset the normal operations of the school where he worked.

The Court held that under these circumstances a teacher or, for that matter, any public employee should not be subject to dismissal unless his or her statements were made with knowing or reckless disregard of the truth. As a practical matter, the burden of proof imposed by this standard is so great that it provides nearly absolute protection to public employees in situations similar to Pickering's. Under the rule in Pickering v. Board of Education then, courts should focus upon whether the employee's words so undermined working relationships on the job as to justify upholding the discharge. Applying this test, certain remarks might constitute grounds for discharge in some cases but not in others. Courts should look to the specifics of the employment situation rather than concentrating upon the employee's words in and of themselves.

New Development:
The ruling in Palmateer v. International Harvester Corp., which was decided by The Illinois Supreme Court on March 9, 1981, also has potential for greatly enhancing legal protection of employees against unjust dismissal. Palmateer, an employee of International Harvester, was fired for supplying information to local law enforcement authorities that another employee might be stealing from the company and for agreeing to assist in the investigation and trial of the employee if requested.

Under prevailing doctrine of employment at will, Palmateer would have had no cause of action against International Harvester. The Illinois Supreme Court, however, upheld his claim. In Kelsey v. Motorola Inc. 74 Ill. 2d 172 (1978) the court had allowed recovery by an employee discharged far filing a workman's compensation claim. This case, which was the first in Illinois acknowledging a cause of action for retaliatory discharge, left unclear the criteria for determining when recovery would lie. In Palmateer the Illinois Supreme Court addressed this matter by saying that "the foundation of the tort of retaliatory discharge lies in the protection of public policy . . ." As to the definition of "public policy" the court said ". . . in general . . .public policy concerns what is right and just and what affects the citizens of the state collectively . . . Although there is no precise line of demarcation dividing matters that are the subject of public policies from purely personal matters, a survey of cases in other states involving retaliatory discharges shows that a matter must strike at the heart of a citizen's rights, duties, and responsibilities before the tort will be allowed." By this standard Palmateer's claim was upheld because "public policy favors the exposure of crime and the cooperation of citizens possessing knowledge thereof is essential to effective implementation of that policy."

The Palmateer case, with its expansive criterion of public policy, contains the potential for substantially extending the legal rights of unjustly discharged employees. In previous cases where courts allowed recovery for retaliatory discharge the rulings were strictly limited to the respective specific circumstances with no attempt to go beyond them. By contrast, Palmoteer enunciates a general rule that appears onus face to contradict directly the prevailing employment at will doctrine. It remains to be seen what courts will do with Palmateer. In this regard it should be noted that the case contained a vigorous dissent by justice Ryan, the author of the majority opinion in Kelsoy v. Motorola Inc.. in which he complained about the court's extremely broad definition of public policy. In any event, it seems unlikely that Palmoteer will be ignored.

Some Proposals for Change:
J. Peter Shapiro and James F. Tune argue that courts should recognize implied contractual rights to job security⁹. In their view the factors for determination of whether such a right obtains in particular circumstances should be thought as primarily relating to the employment situation. Same such factors are length of service and stated policies of the employer. Others, however, should be considered as well, such as the following:

(1) separate consideration-that is, did the employee confer same additional benefit upon the employer in taking the position at issue, such as making financial contributions to the employer's business?; or, did the employer induce special reliance by the employee so that the latter passed up valuable opportunities in choosing to work for the former? In this regard, the mode of recruitment-that is, "hard sell or soft sell" may be crucial.

(2) nature of the job-that is, does the job at issue, by its very nature imply a definite duration? In this regard, some positions involve a clear tacit understanding of terminability at will, e.g. a church congregation's employment of a minister.

(3) common law of the industry-the general practices with regard to employment in a particular line of work may be considered an implied part of the bargain, especially when an employee expects or encourages this very understanding.

Shapiro and Tune conclude that an approach, which takes the above kinds of factors into account, serves to protect the interests of both employee and employer far more effectively than does mechanical application of the employment at will doctrine.

Clyde W. Summers believes an overwhelming case exists for comprehensive state laws to protect employees from unjust dismissal.'° He maintains that, despite the need for protection against unjust dismissal, courts in all likelihood will not provide it. He notes that despite the variety of plausible legal theories available for developing such protection, on the whole courts have declined to employ them on the ground that doing so would initiate a perilous journey into "uncharted regions."

Comprehensive statutes thus seem to Summers the most effective and practical means of protecting workers against unjust dismissal. Contrary to prevailing judicial opinion, Summers maintains that enacting such statutes would not involve traveling into uncharted territory. Indeed, a mature set of basic principles for unjust dismissal cases has evolved out of the accumulated experience of labor arbitrators. Summers notes that for at least the past two decades arbitration of grievance under collective bargaining agreements has primarily involved applying these principles to specific cases. Moreover, in drafting comprehensive statutes, states could draw upon the experiences of many countries throughout the world, such as England, Germany, France, and Sweden, which already have laws in place providing for the adjudication of employee grievances.

Summers thus proposes a statute reaching all forms of disciplinary action in the workplace and covering all employees, both public and private, with perhaps an exception for very small enterprises. He believes that such a statute can best be built upon the standards of the existing arbitration system. Thus, the term `just cause' should not be statutorily defined, for the existing body of precedent has already given it a definite yet flexible content. Claims under the statue would be submitted to arbitration. One possible procedure would provide that if the parties were unable to agree on an arbitrator, then one would be selected from a panel maintained for that purpose by the State. Arbitrators under the statute should have the same scope and flexibility in determining remedies as do arbitrators under collective bargaining agreements.

Footnotes
1. 81 Tenn. 507, 519-20 (18891.
2. 158 Cal. 551, 555 (1910).
3. 456 Pa. 171, 319 A. 2d 174 (1974).
4. Petermann v. Teamsters Local 396. 174 Cal. App. 2d 104, 344 P. 2d 25 (C t. App. 1959).
5. Frempton v. Central Ind. Gas Co., 260 Ind. 249. 297 N.E. 2d 425 (1973).
6. Nees v. Hocks, 272 Ore. 210, 536 P. 2d 512 (1975).
7. Hell v. Faulkner, 75 S.W. 2d 612 (Mo. CL App. 1934).
8. Mallard v. Baring. 182 Cal. App. 2d 390, 394, 6 Cal. Rptr. 171, 174 (Cf. 1962).
9. J. Peter Shapiro and James F. Tune. "Implied Contractual Rights To Job Security," Stanford Law Review Vol, 26, [1974) 335-69,
10. "Individual Protection Against Unjust Dismissal: Time for n Statute, ' Virgin in Law Review Vol. 62 (1976) 481-532.