[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

discharge, holding that the at-will doctrine was limited by important public policies. 4
Today, both common law and statutes protect employee-whistleblowers. Courts have
recognized the rights of employees to sue in tort for retaliatory discharge, wrongful
termination, and wrongful discharge, 5 and in contract for breach of express and implied
provisions in employment contracts, as well as for violation of an implied covenant of good
faith. 6 Federal and state statutes, such as Sarbanes-Oxley in Wadler, create similar rights for
employees in both the public and private sectors. 7
Public Policy The public policy exception to the at-will employment doctrine recognizes
that employers are not free to fire employees because they report or refuse to engage in
illegal activity, exercise a statutory or constitutional right, or perform a duty required by
law.
Some states construe the “illegal activity” exception narrowly, limiting it to situations
where the employer instructs the employee to commit a crime. 8 Others extend it to tortious
acts as well, 9 and some grant the cause of action to employees who refuse to commit a
violation of administrative regulations. 10 Jurisdictions differ on whether the unlawful
activity must relate to public health and safety, and whether the employee must actually
report the activity outside the organization. 11
Further, statutes and case law recognize that employees who exercise a statutory right,
such as the right to seek workers’ compensation for a workplace injury, also are protected
from retaliatory discharge. 12 Many courts and statutes create a public policy exception for
the performance of a public duty required by law, such as jury service, obeying a subpoena,
or reporting child or elder abuse. 13
Rules of Professional Conduct Violations Many courts have recognized that refusal to violate
a professional ethics code could qualify as an important public policy. 14 To establish such
an exception to the at-will doctrine, Wadler and other discharged counsel have to cite the
relevant rule and establish that it embodies an important public policy with a clear mandate
to act. Courts have found such clear public policies in the Model Rule’s various
prohibitions against fraudulent conduct 15 (such as Model Rule 1.2(d)) or requiring
reporting of lawyer misconduct (Rule 8.3). 16
Discharge: Actual and Constructive The plaintiff in a wrongful discharge case must prove
not only that she sought to vindicate an important public policy, but also that she was fired
for doing so. When an employee resigns or quits his job, that implies that the employer did
not discharge him. If the facts indicate that the plaintiff did not voluntarily leave her job
but felt compelled to resign because of the employer’s actions, courts recognize the doctrine
of constructive discharge. 17
Are Lawyers Different?
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