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23 Val. U. L. Rev. 33 (1988-1989)
Employment-at-Will & (and) Codes of Ethics: THe Professional's Dilemma

handle is hein.journals/valur23 and id is 57 raw text is: EMPLOYMENT-AT-WILL & CODES OF
During the late 19th and early 20th centuries a new set of legal rules
emerged in the United States governing the relationship between employer
and employee. These rules were called employment-at-will and provided
that, absent express agreement to the contrary, employment was for an in-
definite time and could be terminated by either party, for any reason, or for
no reason at all. This doctrine is a unique product of American common
law, created by state and federal judges, and continues, substantially un-
changed, until today. Because of the economic power of employers, espe-
cially large corporations, the rule gives management largely unfettered con-
trol over the workplace in most situations. I believe the development of the
employment-at-will doctrine cannot be explained on the bases of precedent,
legal history, or legal analysis. Rather, it emerged because of its congruence
with the dominant business-oriented political ideology of a century ago, and
was elevated to constitutional doctrine by the Supreme Court in the early
twentieth century.
The employment-at-will rule, of course, applied only in the absence of
an express contract or some contrary public law pronouncement. Since the
1930s, a number of these exceptions have been created limiting the em-
ployer's power to discharge. Most significant is the requirement that an em-
ployer show just cause for firing unionized workers covered by a collec-
tive bargaining agreement. As of 1985, eighteen percent of American
employees were covered by this exception.' In addition, approximately sev-
enteen percent of the workforce are public employees,2 protected against
arbitrary dismissal by civil service rules and constitutional protections. A
third major exception to the at-will rule involves statutes which limit em-
ployer discharge power where the action is based on the worker's member-
* B.A. Columbia University; J.D., Harvard Law School; Professor of Law, Valparaiso
University School of Law. Parts of this paper were originally delivered at my Inaugural Lec-
ture at the Valparaiso University School of Law.
1. Bureau of the Census, U.S. Dep't of Commerce Statistical Abstract of the United
States 409 (1987).

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