해고제한의 법리로서 불법행위이론 - 미국의 공공정책 불법행위 이론을 중심으로

Courts in most states recognize a private right of action for dismissals that jeopardize specific public policy interests of the state. This category of tort liability is called the public policy tort.<BR> The public policy tort, is a specific application of the prima facie tort. The public policy tort permits recovery by a dismissed employee only when the dismissal violates a clear public policy of the state.<BR> The prima facie tort allows recovery if the employer dismissed the employee with malice and without justification. Malice is a legal term of art that means little more than the mental state that motivates harmful conduct in the absence of justification.<BR> Intentional tort principles applicable to these categories permit a plaintiff to recover only by showing that a legally protected right of the plaintiff was harmed by an act of the defendant and that the defendant lacked justification for his act. The public policy tort theory expands the range of circumstances in which an employee may recover without having to establish the employer`s conduct or state of mind sufficiently to satisfy traditional tort categories such as intentional interference with contractual relations, intentional infliction of emotional distress, fraudulent misrepresentation, defamation, or invasion of privacy. None of these traditional theories permitted the employee to recover for the dismissal itself. The newer public plicy tort theory permits a dismissed employee to recover for the dismissal itself.<BR> Public policy tort cases require courts to balance the interests of the employee, employer, and society under formula presented in § 870 of the Restatement(Second) of Torts.