Part Three:
Tort-Based Protections for
Workers
Chapter 4:
The Public Policy Exception to
the At-Will Rule
Fitzgerald v. Salsbury Chemical

 terminated after his
subordinate negligently
created dangerous condition.

π’s claims he was fired:
(1) because he didn’t
support the termination;
(2) because Δ feared his
testimony in subordinate’s
threatened legal action.
Fitzgerald v. Salsbury Chemical
Court’s Analytic Framework
Three elements:
(1) engagement in “protected activity”;
(2) discharge; and
(3) causal link: activity
discharge.
Fitzgerald v. Salsbury Chemical
 Refusal to commit perjury = protected activity
 Intention to so testify = protected activity
 Is this pushing the principle too far?
Fitzgerald v. Salsbury Chemical
Outcome:
Summary judgment in Δ’s favor improper
π’s claim for the jury.
Fitzgerald Notes
 The public policy tort is widely, but not universally,
recognized
 New York is the major exception
But attorneys protected at common law
 New York, statutes provide niche protections
 Framing the issue
 More specific the public policy must be, the rarer
the tort
 Nexus between policy and at-issue conduct
Fitzgerald Notes
 Public policy must protect “the public”
 Foley v. Interactive: at issue policy was for the protection of
the employer
 Restatement’s focus on harm to “third parties and society”
 Wrongful discipline or only wrongful discharge?
 Constructive discharge
 Reasonable or right?
 Attorneys – a special case?
 More protection – Weider v. Skala
 Less protection – Herbster v. N.A. Co. for Life & Health Ins.
Rackley v. Fairview Care Centers