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 Public Concern and Public Policy:
Freedom of Speech in the Workplace
Ann M. Gill
Colorado State University

Some legal scholars and court critics have decried the so-called legal revolution in
individual rights whose genesis is seen in the Warren Court. Such action as the development
of the constitutional right to privacy has changed not only the face of American law but
life as well. However, a no less remarkable revolution currently is occurring in the area
of employment law. Among the developing rights for employees is freedom of speech.
This new right is not uniform among all employees; protections vary depending upon the
public or private nature of employment and the jurisdiction.
In the private sector, the revolution is most pronounced. By creating a so-called "public-
policy" exception to the long-standing doctrine of employment at will, courts have thrown
the continued validity of the doctrine into question. The product of nineteenth-century
American jurisprudence, the doctrine of employment solely at the will of the employer
historically had solid legal support. As recently as 1975, the American Law Reports
described the right to discharge an employee for an indefinite term without notice or cause
the most settled rule of American law.' In this essay, I review the law of employment as
it bears on the right to free speech for employees both in the public sector, where the
applicability of the Constitution long has been established, and in the private sphere, where
employment at the will of the employer has been the uniquely American rule.

Public-Sector Employees

Employees in the public sector, that is, persons employed by a governmental body, have
free speech rights by virtue of the United States Constitution. Most of the constitutional
amendments in the Bill of Rights contain the term "Congress" in describing a particular
prohibition against governmental interference with individual rights. The meaning of the
drafters was determined by the Supreme Court in the 1833 case of Barron v. Baltimore,
holding the prohibitions in the first ten amendments not to limit state or local governments
nor private individuals. 2 However, the so-called Civil War Amendments, in particular the
Fourteenth, specifically proscribed action by state authorities: ". . . nor shall any State
deprive any person of life, liberty or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws." After years of dormancy,
the Court gave life to this amendment in a series of decisions described as selectively
incorporating provisions of the first ten amendments into the Fourteenth. The effect of
such incorporation was to protect individual rights thus incorporated against incursion by
states as well as by the federal government. The right to freedom of speech, specifically,
 Ann M. Gill

was incorporated into the Fourteenth Amendment in 1925.' However, incorporation only
extended constitutional prohibitions to governments; private violations are not covered.
The only instances in which private activity affecting expression is restrained by constitu-
tional provisions is when the private activity has been influenced by government. This
influence is known as "state action." If private individuals are acting at the behest of
government, or are otherwise involved in governmental functions, then their actions may
be prohibited by the First and Fourteenth Amendments. Although the notion of state action
was established over a century ago in the Civil Rights Cases, what constitutes state action
has evolved greatly.4 For example, the court involvement necessary to enforce restrictive
covenants that prohibited sale of private housing in a certain subdivision to non-Caucasians
was held to be the state action necessary to make such covenants unconstitutional in
Shelley v. Kraemer.5 In any event, governmental involvement rising to the level of state
action can make an employer subject to the prohibitions of the U.S. Constitution.
Although individual rights of free speech are protected against infringement by all levels
of government or by state action, when the government is in the role of employer, the
right of free speech has not fared as well as it has when the government acts as police or
as regulator. As the Court frequently has stated, the First Amendment is not absolute, and
courts will balance an individual's right of free speech against governmental interests-
in the instant case, the interests being balanced are those particular to the government
when it acts as employer.
Both tenure and civil service systems provide a measure of job security to public-sector
employees. Civil servants, under the Civil Service Reform Act of 1978, can be dismissed
only for "just cause.",6 Further, public employees are given due process rights under the
Fourteenth Amendment, which requires certain procedures before the life, liberty, or
property of an individual can be taken by a state. In two companion cases in 1972, Board
of Regents v. Roth7 and Perry v. Sindermann', the Supreme Court held that public
employment involves a liberty interest if statements made by the employer concerning
termination seriously damaged the employee's associations or standing in the community
or if they created a stigma that would affect the employee's chances of finding future
employment; such employment involves a property interest if there was a legitimate
entitlement to continued employment, such as tenure, contract, or reasonable expectation
of continual rehire. 9
A variety of cases have dealt specifically with free speech rights of public employees.
The relationship of free speech to academic freedom was spelled out in Keyishian v.
Board of Regents, which claimed academic freedom was a "special concern" of the
First Amendment, "which does not tolerate laws that cast a pall of orthodoxy over the
classroom."' In the 1980 political-patronage case, Branti v. Finkel, the Court held that
discharge of assistant public defenders solely because of their political beliefs was a
violation of the First and Fourteenth Amendments."1
The most recent case involving the free speech rights of public employees seems to
limit those rights somewhat. In Connick v. Myers, handed down in 1983, the plaintiff, a
New Orleans assistant district attorney, protested her supervisor's attempt to transfer her.
As a part of her protest, she surveyed other assistant district attorneys concerning their
attitudes about the transfer policy, morale, and other issues. Soon thereafter, Ms. Myers
was terminated, which she claimed violated her First Amendment rights. The test given
by the Court in balancing Ms. Myers' right to free speech against the government's rights
as employer is:
 Freedom of Speech in the Workplace

When employee expression cannot be fairly considered as relating to any matter of political, social,
or other concern to the community, government officials should enjoy wide latitude in managing 2
their offices, without intrusive oversight by the judiciary in the name of the First Amendment.'

The Court goes on to refine this standard, saying:

We hold only that when a public employee speaks not as a citizen upon matters of public concern,
but instead as an employee upon matters only of personal interest, absent the most unusual circum-
stances, a federal court is not the appropriate forum in which to review the wisdom of a personnel
decision taken by a public agency allegedly in reaction to the employee's behavior. 1"

However, despite finding that Ms. Myers' questionnaire "touched" upon public issues,
the Supreme Court balanced rights in favor of the state, upholding her dismissal for speech
14
that clearly could not have been regulated by legislation at any level of government.
Public employees, therefore, may have a constitutional claim if they are terminated for
speech that concerns public issues. The Connick court, however, makes a confusing
reference to rights of free speech held by private employees:

Our responsibility is to insure that citizens are not deprived of fundamental rights by virtue of
working for the government; this does not require a grant of immunity for employee grievances not
afforded by the First Amendment to those who do not work for the state.' 5

This allusion is confusing because the dismissal of an at-will private employee in a situation
not involving state action has not, prior to the recent employment cases, been held to
involve constitutional protections in any way. Further, despite some inappropriate language
in a few cases, the First Amendment still does not protect private employees against
termination based on expression; only the statutory or common law can accomplish that.

Private-Sector Employees

Absent any state action, constitutional guarantees offer no protection against violation
of rights by purely private action. As the Supreme Court said in the Civil Rights Cases:

[C]ivil rights, such as are guaranteed by the Constitution against state aggression, cannot be impaired
by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs or
judicial or executive proceedings. The wrongful act of an individual, unsupported by any such
authority, is simply a private wrong, or a crime of that individual.' 6

Using the Civil Rights Cases precedent, questions of free speech rights in the workplace
would appear to be solved easily. If the employer is a government agency or is acting
under government influence, then employees would have a legitimate claim to freedom
of speech, which, if it met the Connick criterion, would be balanced against the competing
interests of the governmental employer. If, however, the employer is private, then no such
claim would exist and an employee could be terminated for any unacceptable expression.
Such an "easy" case, Novosel v. Nationwide Insurance Company, was before the Third
Circuit Court of Appeals in 1983. An employee refused his employer's request to take
part in a program designed to generate support for the passage of a no-fault insurance bill
by the state legislature, resulting in his dismissal. Although the case involved a purely
 Ann M. Gill

private employer with no claimed state action, the court was being asked to find a First
Amendment protection for the employee against such dismissal. In its decision, the court
found that the right to freedom of political expression, which includes the right not to
speak, was a public policy in the state of Pennsylvania, protecting this private employee
against dismissal. 7
Although the impact of Novosel and other cases as well as recent legislative actions is
far from settled, one thing is clear-the at-will relationship between private employer and
employee is no longer the most settled rule of American law. Where formerly no rights
existed, employees may now have rights against dismissal due to the exercise of certain
constitutionally protected actions, including, in some jurisdictions, free speech. Many
questions remain. Is protected expression limited to political opinions or issues of public
concern? Does it include informing government regulatory agencies of problems in the
workplace or product of the employer-so-called "whistleblowing"? To assess the current
status of the law as well as portend future possibilities, the history of the employment-at-
will doctrine and its exceptions, including the amorphous "public-policy doctrine," must
be reviewed, for only against this backdrop can the rapidly changing rights of free speech
in the private workplace be understood.
Employment-at-Will Doctrine
The employment-at-will doctrine is a rule peculiar to American law; the United States
is the only "major country" using such a rule"8 . Under the English common law, employ-
ment for an indefinite period was construed to be yearly and required reasonable cause
and notice by either party before the relationship could be terminated.' 9 Colonial and early
American law adopted this rule. However, during the late nineteenth century, American
courts developed the notion of employment at will. 20 The doctrine was invented in 1877
by Wood in his work on master-servant relationships 2' and first adopted by a court in the
1895 New York case, Martin v. New York Life Insurance Company.2 2 The doctrine held
that employment may be terminated at any time, by either party, for any reason, or for no
reason.
The development of this doctrine is laid to various explanations. Hill agrees with one
prevailing theory-the American notion of freedom of contract. However, he argues, "[t]o
be sure, freedom of contract was perfectly complemented by the then dominant economic
ideology of laissez-faire in which individual action was sovereign., 23 In any event, the
doctrine, once developed, became ensconced in American law.
The doctrine achieved constitutional status in 1908 in Adair v. U.S., which found that
a statute prohibiting dismissal of employees solely for membership in a labor organization
violated the Fifth Amendment; in absence of a contract, the Court held that the employer
was under no obligation to retain the services of an employee.24 Relying on Adair, the
Court found a Kansas law banning yellow-dog contracts unconstitutional in 1915. In
Coppage v. Kansas, the Court ruled that a law preventing an employer from dismissing
an employee for union membership violated the right to contract and the Due Process
Clause of the Fourteenth Amendment. Admitting that an individual had a right to join a
union, the Court held that no right existed to do so and still "remain in the employ of one
who is unwilling to employ a union man. ' 25
Exceptions to Employment-at-Will
During most of the twentieth century, the only exceptions to the at-will doctrine were
statutes establishing employer-employee rights. For example, the Court changed its labor-
 Freedom of Speech in the Workplace

union stance in the 1937 case of National Labor Relations Board v. Jones & Laughlin
Steel Corporation and upheld provisions in the National Labor Relations Act forbidding
termination of employees solely for union activity.26
Other employees not at-will were those covered by contracts and public employees.
Most contractual employees were covered by collective bargaining agreements. Hill
estimates that 96% of all collective bargaining agreements in the United States have some
job-security provision, and 80% have a dismissal-for-just-cause-only provision.27 Despite
these exceptions, Peck estimates that 70 to 75 million American workers are at-will and
that between 6,500 and 7,500 yearly are fired for reasons that could be termed unjustified.28
Other exceptions to the at-will concept of employment have come from the common
law. Common-law exceptions developed from suits by former employees seeking redress
for what they felt were unjustified terminations of their employment. These ground-
breaking decisions are based on two different types of claims by the plaintiffs-violation
of contract rights and cases sounding in tort. Contract cases claim a breach of duty
stemming from an agreement between employer and employee; in tort cases, the duty
violated is a duty imposed by law.
Those cases stemming from former at-will employees who claim breach of a contract
usually involve implied contracts. Such contracts can arise from oral assurances or from
representations in company handbooks or personnel policies. If the at-will employee was
under contract, then the claim can come from express guarantees in the written document.
Breach of contract is the less favored claim of plaintiffs because the remedy for a breached
contract is damages in an amount to put the injured party in the position in which he or
she would have been had the contract not been breached; that is, the former employee
would receive recompense. However, tort violations can be remedied by general damages
for pain and suffering as well as, in certain circumstances, punitive damages. The result
is a much larger judgment for the aggrieved former employee. 29
The tort of wrongful discharge first was recognized in 1959 by a California court in
Petermann v. Teamsters. The discharged employee had refused to perjure himself before
a legislative committee as instructed by his employer. The court acknowledged the employ-
ment-at-will doctrine but claimed that it could be limited by statute or by considerations
of "public policy." 3 This latter term has operated as the window through which most of
the exceptions have entered the doctrine and almost destroyed it.
Public Policy
Not all jurisdictions recognize the tort of wrongful discharge; many of those that do
have struggled to define the notion of public policy. A Wisconsin court held that public
policy "must be evidenced by a constitutional or statutory provision."'" An Arizona court,
on the other hand, stated that it did not believe that "expressions of public policy are
contained only in the statutory and constitutional law, nor . . . that all statements made
in either a statute or the constitution are expressions of public policy. 3 2 In perhaps the
most accurate assessment of determinations of public policy, a New Jersey court admitted
that, in absence of legislation, courts were left to decide what constituted public policy
on a case-by-case basis.33
Such case-by-case adjudication has led to a hodgepodge of results. Among the reasons
for dismissal of private employees that have been held to violate public policy are the
performance of a legal obligation such as jury duty, 34 refusal to commit acts that are
unlawful 35 or that expose the employee to legal liability,3 6 exercise of a legal right such
as filing a worker's compensation claim,3 7 or membership in a union.3 ' Further, courts
 Ann M. Gill

have ruled
39
that discharge for refusal to date or have sex with a supervisor violates public
policy.
Other courts, however, have found no public-policy exception for discharges based on
an employee's filing of worker's compensation claims 4° or claims with the company health
insurer 4' or termination for absence resulting from a work-related accident. 42 Although an
Arizona court claims that "no court faced with a termination that violated a 'clear mandate
of public policy' has refused to adopt the public policy exception" ' to the at-will doctrine,
it glosses over the fact that some courts simply have refused to recognize a tort of wrongful
discharge" or find no exceptions to the at-will doctrine. 4 Further, the cases concerning
public-policy exceptions are anything but consistent; in particular, results in cases involv-
ing expression are uneven at best.

Freedom of Speech as Public Policy

The precedent of Novosel has not been followed in all jurisdictions; in fact, its holding
appears to be limited. However, short of declaring that a private employee has free speech
rights similar to those guaranteed by the First Amendment, a number of courts have found
that termination for speech of one sort or another violates the public policy of the state
and is, therefore, an exception to the employment-at-will doctrine. These cases frequently
are in the procedural posture of appeals from dismissal of a complaint for failure to state
a claim or summary judgment for the employer. The decisions, therefore, establish the
potential for violation of public policy by a situation such as the one alleged by the plaintiff
but do not determine that such a violation in fact exists in the case at bar.
Whistleblowing
Frequently the cases involve speech complaining about work-related problems such as
product or service defects, operations or safety complaints, or other employee dissatisfac-
tions-behavior known as "whistleblowing."46 Public-policy exceptions have been found
for complaints that the bank employing plaintiff was not operating in compliance with
state and federal consumer credit protection laws, 47 reports to a company president of
suspicions of embezzlement, 48 demands that employer follow state food labeling and
licensing laws, 49 and reports of malpractice in violation of Navy construction standards. °
On the other hand, other courts have refused to find a violation of public policy in
similar situations such as complaints to the supervisor that the company did not honor the
service and maintenance promises made during sales of business machines, 5' that research
an employee was assigned to do violated medical ethics,52 and that internal accounting
procedures were faulty.53 Such refusals also include claims that nonstatutory causes of
action are not appropriate methods for encouraging responsible employee behavior; 4 that
when wrongly discharged employees have other remedies, such as complaints to the state
department of labor55 or the Nuclear Regulatory Commission 56 or procedures outlined in
whistleblower provision of federal5 7 or state law58 or under other laws such as Title VII of
the Civil Rights Act of 1964, 59 a tort action should not be allowed. Even whistleblowers
who pursue remedies under a specific law may have difficulties. A federal appeals court
held that an engineer was not a "miner" protected under the whistleblowing provisions of
the Federal Mine Safety and Health Act. 60
A distinction courts seem to make, albeit not with total consistency, involves the person
to whom the employee's complaint is directed. A number of courts find no violation of
public policy when an employee is dismissed for an internal complaint. 6' An Illinois
 Freedom of Speech in the Workplace

appeals court claimed that a public-policy exception must "strike at the heart of a citizen's
social rights, duties and responsibilities" and distinguished turning to public officials from
going through channels at the place of employment.62 On the other hand, a Pennsylvania
court refused to find a public-policy violation in the dismissal of a social worker who
complained that drug and child abuse occurred in her department, faulting the employee
for going to higher officials, thereby bypassing her superiors with her complaint.63 In
addition, an Illinois court did find a public-policy violation when an employee reported
suspicions of embezzlement of bank funds internally to the bank president 64 as did an
Oregon court when a nursing supervisor was fired after only threatening to report patient
abuse to state authorities.65
When a police officer was dismissed after taking claims of the illegal arrest and
detention of a prisoner to the police chief and also a magistrate, an Arizona appeals court
characterized the behavior as whistleblowing and determined that, as long as such behavior
is not "merely private or proprietary" but instead meant to "further the public good," a
state public policy protected it. 66 Other employee reports to officials of suspected violations
of the law have been found to violate public policy. In New Jersey, public policy protected
employees who reported a bank director's involvement in laundering drug money; 67 in
California, an employee who reported to NASA that he had been ordered to mischarge
time spent on non-NASA projects was protected 68 as was a Hawaiian employee who
reported antitrust violations to the Justice Department 69 and an Arizona employee who
reported theft by his employer.7 °
Issues addressed by courts in determining whether reports of illegal activities are
protected by the public policy of the state include whether illegal activity in fact exists
and whether the employee had a good-faith basis for believing it did. A New York court
held that a good faith belief was not enough when an employee claimed that patients in
a home for the mentally handicapped engaged in nonconsensual sex as such behavior
violated no law. 7' Other courts, however, have ruled that a good faith belief by the
employee is all that is necessary. 72 However, some courts seem willing to evaluate the
reasonableness of the belief that a violation of the law occurred. 73
Courts refusing to find public-policy exceptions in the case before them adopt a variety
of tactics. A Louisiana court deferred to the legislature to change law in this area and
refused to aid a steel-industry employee discharged when he complained that foreign steel
was being misidentified and delivered to customers who had specified domestic steel on
their order. In verbal gymnastics seemingly designed to avoid appearing inconsistent with
cases in other jurisdictions, the court concluded that the plaintiff's claim, "although
appealing, is not that of a 'whistleblower' who may possibly be protected by constitutional
provisions of free speech." '74 Similarly, a Pennsylvania court claimed that their refusal to
find a public-policy violation in the termination of a newspaper employee who placed 75a
classified ad in a competing newspaper did not "diminish the right of freedom of speech.
The issue also was skirted by a federal district court which determined that Vanessa
Redgrave, who was dismissed from a planned narration of a series of Boston Symphony
Orchestra concerts because of her vocal political views on the Mideast, had a contract,
therefore making common law concerning exceptions to the at-will doctrine irrelevant to
her case.76
Expansion of the Constitution
Some of these cases, including Novosel, blur long-standing and important distinctions
in constitutional law. Without state action, the First Amendment does not apply to activities
 Ann M. Gill

in private employment. Certainly, Congress or state legislatures are free to pass legislation
granting free speech rights to employees. The Civil Rights Act is one example of Congress
determining that certain rights ought not be infringed by private persons. Similarly,
whistleblower provisions in various federal and state statutes provide protection for certain
kinds of speech. However, when a court, in the absence of legislation, declares that
termination of employment solely due to certain expression by the employee violates the
public policy of the state, they have created a common-law right; they have not extended
First Amendment protection to private employees in that state nor do they have the power
to do so.
In creating a common-law right, the court can set any parameters on the right it wishes.
For example, rights of association are protected under the First Amendment; however, a
federal district court in Pennsylvania refused to find a public-policy violation when an
employee was discharged for associating with a former company president.77 On the other
hand, courts can refuse, as they did in Louisiana, to create any new law in this area,
deferring to the legislature.
The Third Circuit, which decided Novosel, has gone farther than any court in using
constitutional principles as evidence of the public policy of that state. However, the
holding in Novosel has been limited. Although the case was heard in federal district court,
it involved issues of Pennsylvania state law. When a federal court, due to diversity or
other jurisdictional rule, hears a case involving matters of purely state law, it is bound by
state court common law. 78 Cases subsequent to Novosel claim the federal court exceeded
these bounds in that case.79
The issue of the proper role of courts is central to criticism of the new developments in
employment law. Not surprisingly, employers and their labor-law counsel have greeted
the demise of employment at will with dismay. They argue that this sort of judicially
created right is akin to the judicial activism criticized by those who rue the expansion of
individual rights begun under the Warren Court. One commentator refers to public policies
found by courts as "ethereal." 80 Others, however, argue that such changes are past due:

Such a philosophy of the employer's domain over his employee may have fit the rustic simplicity
of the days when the farmer or small entrepreneur, who may or may not have employed others, was
the epitome of American individualism. But the philosophy is incompatible with these days of large,
impersonal, corporate employers.8 '

Whistleblowing adds a unique dimension to the controversy. One critic suggests that
"[b]y far the most controversial of the newly created public policies in wrongful discharge
cases is the public policy favoring an employee's public protest of. . . business activities
deemed improper and unlawful by the employee. 82 The tension that exists in whistleblow-
ing cases is between the safety and well being of the public and the freedom of employers
to operate as they see fit. Seen in this light, employee rights of free speech should be
irrelevant. Indeed, most discussions of whistleblowing as a public policy by legal scholars
ignore the free speech dimension. However, as in Novosel and other cases, wide-spread
belief in the right to speak one's mind has blurred long-standing legal distinctions, and
some courts have made employees' rights of expression part of the development of the
public-policy exception to the employment-at-will doctrine. Even in cases ignoring the
implications to expression, the effect is unchanged-the employee whose dismissal is
found to violate public policy has received protection for the expression of opinion.
 Freedom of Speech in the Workplace

Conclusion

Although the future directions the statutory and common-law development of a public-
policy exception for expression will take are not clear, more and more states seem to be
finding such public-policy exceptions, particularly for expression of the whistleblowing
type. The result is that private employees, like those employed in the public sector, may
have some claim against unjust dismissal when they speak out on issues of public concern.
Indeed, the Supreme Court, in Connick v. Meyers, implies that the rights it articulates for
public employees are shared, somehow, by private-sector employees.83 However, until
some uniformity comes to the patchwork of state decisions, employees will have difficulty
in determining whether they will be protected prior to undertaking whistleblowing behav-
iors. Operating on a case-by-case basis allows courts the freedom to react to individual
situations; however, that is scant consolation to individuals weighing the duties of public
responsibility against the possibility of unemployment.

Notes
1. Annot. 62 A.L.R.3d 271, 274 (1975).
2. Barron v. Baltimore, 7 Peters (32 U.S.) 243 (1833).
3. Gitlow v. New York, 268 U.S. 652 (1925).
4. 109 U.S. 1 (1883).
5. 334 U.S. 1 (1948).
6. 5 U.S.C. Sec. 2031 (1980).
7. 408 U.S. 564 (1972).
8. 408 U.S. 593 (1972).
9. Other cases have further defined a public employee's due process rights. The Court found
that statutory creation of dismissal for "just cause only" created a property interest in Amette v.
Kennedy, 416 U.S. 134 (1974). The Sindermannholding was limited in Bishop v. Wood, 426 U.S.
341 (1976), which held that limitation or absence of procedural protections in a statute meant the
employee was at will and did not have a property or liberty interest. See, generally, W. Holloway
& M. Leech, Employment Termination Rights and Remedies (1985) 163-84.
10. 385 U.S. 589, 603 (1967).
11. 445 U.S. 507 (1980). See, also, Elrod v. Bums, 427 U.S. 347 (1976).
12. 461 U.S. 138, 146 (1983).
13. 461 U.S. 138, 147.
14. Two post-Connick decisions by the 8th Circuit seem to emphasize this balancing. In Patterson
v. Johnson, 787 F.2d 1245 (8th Cir. 1986), the balance was struck in favor of a deputy state auditor
who testified truthfully in response to questions at a legislative hearing on proposed legislation, in
part due to the already deteriorated relationship with his supervisor. The employing school district's
rights, however, outweighed the rights of a teacher who spoke out against an administrator's style
that discouraged teacher input in Cox v. Dardanelle Public School District, 790 F.2d 668 (8th Cir.
1986). Further, in Keddie v. Pennsylvania State University, 412 F. Supp. 1264 (M.D. Penn. 1976),
the court determined that rights of free speech could be limited to maintain harmony among
coworkers, discipline, and confidentiality. See, also, Riddle v. City of Ottawa, 754 P.2d 465 (Kan.
1988); Barnes v. McDowell, 848 F.2d 725 (6th Cir. 1988); Murray v. Gardner, 741 F.2d 434 (D.C.
Cir. 1984); McMurphy v. City of Flushing, 802 F.2d 191 (6th Cir. 1986); Devine v. Dept. of Public
Institutions, 317 N.W.2d 783 (Neb. 1982).
15. 461 U.S. 138, 147 (1983).
16. 109 U.S. 1, 7 (1883).
17. 721 F.2d 894 (1983).
18. A. Hill, "Wrongful Discharge" and the Derogation of the At-Will Employment Doctrine
(1987) 11.
19. W. Blackstone, Commentaries on the Law of England 413 (Bell ed. 1771).
 Ann M. Gill

20. Hill, supra note 18, at 1-2.

21. H. Wood, Master and Servant, Sec. 134 at 273 (2d. ed. 1886).
22. 148 N.Y. 117 (1895).
23. Hill, supra, note 18, at 4.
24. 208 U.S. 261 (1908).
25. 236 U.S. 1, 19 (1915).
26. 301 U.S. 1 (1937).
27. Hill, supra, note 18, at 9.
28. Peck, Unjust, Discharge From Employment: A Necessary Change in the Law, 40 Ohio
St.L.J. 1, 8-10 (1974).
29. See, Note, ProtectingAt-Will Employees Against Wrongful Discharge, 93 Harv.L.R. 1816
(1980).
30. 344 P.2d 25 (Cal. App 1959). See, generally, Murg & Scharman, Employment at Will: Do
the Exceptions Overwhelm the Rule?, 23 B.C.L. Rev. 329 (1982); S. Schmidt, Development of the
Public Policy Exception to the At-Will Doctrine, 29 Ariz.L.R. 295 (1987); Mauk, Wrongful Dis-
charge: The Erosion of 100 Years of Employer Privilege, 21 Id.L.R. 201 (1985); J. DeGiuseppe,
Jr., The Effect of the Employment-at-Will Rule on Employee Rights to Job Security and Fringe
Benefits, 10 Ford.Urb.L.J. 1 (1981-82).
31. Brockmeyer v. Dunn & Bradstreet, 335 N.W.2d 834, 835 (Wis. 1983). See, also, Firestone
Textile Co. Div., Firestone Tire & Rubber Co. v. Meadows, 666 S.W.2d 830 (Ky. 1983); Clifford
v. Cactus Drilling Corp., 353 N.W.2d 469 (Mich. 1984).
32. Wagenseller v. Scottsdale Memorial Hospital, 710 P.2d 1025, 1033 (Ariz. 1985). See,
generally, Note, Employers May Not Dischargeat-Will Employees for Reasons that Violate Public
Policy, 86 Ariz.St.L.J. 161 (1986).
33. Pierce v. Ortho Pharmaceutical Corp., 417 A.2d 505, 512 (N.J. 1980).
34. See, e.g., Nees v. Hocks, 536 P.2d 512 (Ore. 1975); Reuther v. Fowler & Williams, Inc.,
368 A.2d 119 (Pa. Super. 1978).
35. See, eg., Tameny v. Atlantic Richfield Company, 610 P.2d 1330 (Cal. 1980) (fixing retail
gas prices); Petermann, supra note 30; Trombetta v. Detroit, Toledo & Ironton R.R., 265 N.W.2d
385 (Mich.App 1978) (manipulating pollution sampling results); Harless v. First National Bank of
Fairmont, 246 S.E.2d 270 (W.Va. 1978) (hiding bank's noncompliance with consumer credit
laws); Sarratore v. Longview Van Corporation, 666 F.Supp. 1257 (N.D.Ind. 1987) (setting back
odometers). But see, Frichter v. National Life & Accident Insurance Co., 620 F.Supp. 922 (D.C.La.
1985), affd 790 F.2d 891.
36. See, e.g., Delaney v. Taco Time International, Inc., 681 P.2d 114 (Ore. 1984) and Magnan
v. Anaconda Industries, Inc., 429 A.2d 492 (Conn. 1980) (sign defamatory statement about another
employee).
37. See, e.g., Sventko v. Kroger Co., 245 N.W.2d 151 (Mich. 1976); Frampton v. Central
Indiana Gas Co., 297 N.E.2d 425 (Ind. 1973); Fulford v. Burndy Corp., 623 F.Supp. 78 (D.C.N.H.
1985); Brown v. Transcon Lines, 588 P.2d 1087 (Or. 1978).
38. Glenn v. Clearman's Golden Cock Inn, 13 Cal.Rptr. 769 (1961).
39. See, e.g., Monge v. Beebe Rubber Co., 316 A.2d 549 (N.H. 1974); Froyd v. Cook, 681 F.
Supp. (E.D. Cal. 1988); Lucas v. Brown & Root, Inc., 736 F.2d 1202 (8th Cir. 1984).
40. See e.g., Dockery v. Lampart Table Company, 244 S.E.2d 272 (1978); Martin v. Tapley,
360 So.2d 708 (1978); Christy v. Petrus, 295 S.W.2d 122 (Mo. 1956).
41. Price v. Carmack Datsun, Inc., 485 N.E.2d 359 (Ill. 1985).
42. Clifford, supra note 31.
43. Wagenseller, supra note 31, at 1033.
44. See, e.g., Sabetay v. Sterling Drug Co., 506 N.E.2d 919 (N.Y. 1987); Ferguson v. Freedom
Forge Corp., 604 F.Supp. (W.D.Pa. 1985).
45. See, e.g., Goodroe v. Georgia Power Company, 251 S.E.2d 51 (Ga. 1978); Phung v. Waste
Management, Inc., 491 N.E.2d 1114 (Ohio 1986).
46. See, generally, J. Conway, Protecting the Private Sector At-Will Employee who "Blows the
Whistle": A Cause of Action Based upon Determinants of Public Policy, 1977 Wisc.L.R. 777
(1977); C. Peters & T. Branch, Blowing the Whistle: Dissent in the Public Interest, (1972);
P. Blumberg, Corporate Responsibility and The Employee's Duty of Loyalty and Obedience: A
PreliminaryInquiry, 24 Okla.L.R. 279 (1971).
 Freedom of Speech in the Workplace

47. Harless, supra note 35.

48. Petrik v. Monarch Printing Corporation, 444 N.E.2d 588 (Ill. 1982).
49. Sheets v. Teddy's Frosted Foods, Inc., 427 A.2d 385 (Conn. 1980).
50. Volina v. General Dynamics, 539 A.2d 531 (R.I. 1988).
51. Keneally v. Orgain, 606 P.2d 127 (Mont. 1979).
52. Pierce, supra note 33.
53. Suchodolski v. Mich. Consolidated Gas Co., 316 N.W.2d 710 (Mich. 1982).
54. Geary v. United States Steel Corp., 319 A.2d 174 (Pa. 1974).
55. Walsh v. Consolidated Freightways, Inc., 563 P.2d 1205 (Or. 1977).
56. English v. General Electric Co., 683 F.Supp. 1006 (E.D.N.C. 1988).
57. See, e.g., Norris v. Lumbermen's Mutual Casualty Company, 687 F.Supp. 699 (D.Mass.
1988). Included among federal laws with whistleblower protections are Occupational Safety and
Health Act, 29 U.S.C. Sec. 660; Federal Coal Mine Health and Safety Act, 30 U.S.C. Sec. 815
(c); Solid Waste Disposal Act, 42 U.S.C. Sec. 6971; Safe Drinking Water Act, 42 U.S.C. Sec.
300j-9; Toxic Substances Control Act, 15 U.S.C. Sec. 2622; Clean Air Act, 42 U.S.C. 7622.
58. See, e.g., Watassek, v. Michigan Department of Mental Health, 372 N.W.2d 617 (1985);
Melchi v. Bums International Security Services, Inc., 597 F.Supp. 575 (E.D.Mich. 1984). States
having whistleblower laws include Maine, Me. Rev. Stat. Ann Ch. 26 Sec. 834 (Supp. 1983) and
Michigan, Mich. Comp. Laws Ann. Secs. 15.361-369 (1981). Hill, supra note 18, at 33 claims
nineteen states have enacted whistleblower statutes.
59. Price v. Cannon Mills Company, 607 F.Supp. 1146 (D.C.N.C. 1988).
60. Paul v. Federal Mine Safety & Health Review Commission, 812 F.2d 717 (D.C.Cir. 1987).
61. Zaniecki v. Bergner and Company, 493 N.E.2d 419 (I11.1986); Phung v. Waste Management,
Inc., 491 N.E.2d 1114 (Ohio 1986); Adler v. American Standard Corporation, 432 A.2d 464 (Md.
1981); Melo v. Stop & Shop Companies, Inc., 524 N.E.2d 105 (Mass. 1988).
62. Palmateer v. International Harvester, 421 N.E.2d 876 (I11.1981).
63. Mudd v. Hoffman Homes for Youth, Inc., 543 A.2d 1090 (Pa. Super. 1988).
64. Petrik v. Monarch Printing Corporation, 444 N.E.2d 588 (Ill. App. 1982).
65. Sterling Drug, Inc. v. Oxford, 743 SW.2d 380 (Ark. 1988).
66. Wagner v. City of Globe, 722 P.2d 250 (Ariz. 1986).
67. Potter v. Village Bank of New Jersey, 543 A.2d 80 (N.J. Super. 1988).
68. Garcia v. Rockwell International Corp., 232 Cal. Rptr. 490 (1987).
69. Parnar v. Americana Hotels, Inc., 652 P.2d 625 (Haw. 1982).
70. Vermillion v. AAA Pro Moving & Storage, 704 P.2d 1360 (Az. App. 1985).
71. Kern v. De Paul Mental Health Services, 529 N.Y.S.2d 265 (Sup. 1988).
72. McQuary v. Bel Air Convalescent Home, Inc., 684 P.2d 21 (Or. App. 1984); Palmer v.
Brown, 750 P.2d 685 (Kan. 1988); Melchi v. Bums International Security Services, Inc., 597 F.
Supp. 575 (E.D. Mich. 1984).
73. Schriner v. Meginnis Ford Co., 421 N.W.2d 755 (Neb. 1988).
74. Gil v. Metal Service Corporation, 412 So.2d 706, 708 (La.App. 1982).
75. Martin v. Capital Cities Media, Inc., 511 A.2d 830, 843 (Pa.Super. 1986).
76. Redgrave v. Boston Symphony Orchestra, Inc., 557 F. Supp. 230 (D.Mass. 1983). The
issue in this case was extracontractual damages as a breach of contract was assumed. The court
didn't address the issue of freedom of speech.
77. Ferguson supra note 44.
78. Wolk v. Saks Fifth Avenue, Inc., 728 F.2d 221, 223 (3rd Cir. 1984), citing Becker v.
Interstate Properties, 569 F.2d 1203 (3rd Cir. 1977).
79. Wolk v. Saks Fifth Avenue, Inc., 728 F.2d 221, 225 (3rd Cir. 1984). See, also, Martin v.
Capital Cities Media, Inc., supra note 75.
80. T. Olsen, Wrongful Discharge Claims Raised by At Will Employees: A New Legal Concern
for Employers, 32 Lab. L. J. 265, 269 (1981).
81. L. Blades, Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise
of Employer Power, 67 Col.L.R. 1404, 1416 (1967).
82. Olsen, supra note 74, at 275.
83. 461 U.S. 138, 147 (1983)