The judicial attack on employment-at-will has been accompanied by strong academic and political activity designed to replace the traditional doctrine with "just cause" protection. The scholarly chorus in favor of abrogating employment-at-will had its roots in two ground­breaking articles, one by Professor Lawrence Blades, advocating judicial development of the tort of "abusive discharge" as a limitation on employment-at-will, [38] and one by Professor Clyde Summers, calling for legislative action to protect employees against unjust discharge. [39] Many of the "public policy" exceptions crafted by liberal state courts have their seeds in Blades' argument that employer power exercised with ulterior or wrongful motives should give rise to a common law cause of action. Now, many of the legislative initiatives designed to protect individual workers may find similar stimulation from the work of Summers.

Summers argued that legal protection against unjust dismissal should be built upon the standards and procedures established within the existing labor arbitration system. The "just cause" standard developed within the collective bargaining setting could be used, as could the cadre of arbitrators nurtured under that system. The state would pay the costs. All employees, both public and private, would be covered after a uniform six month probationary period (unless an explicit contractual term were agreed to instead). Small employers would be protected by having arbitrators take the "close personal relationship" factor into account. The statute would reach all forms of disciplinary action, including demotion, reduction in pay, reduction in seniority, assignment to undesirable work, and forced resignation. In cases of economic layoffs, objective standards of seniority, age, training, breadth of skill, past productivity, and family responsibilities could be used. Reinstatement, back pay, and damages would all be available as remedies.

Summers concludes his advocacy piece with a classic socialist call for public intervention in the private lives of individuals in the name of "justice". This summation, which bleeds across the page with compassion, is worth noting, since it represents well the social and economic view of the enemies of employment-at-will:

It should need no argument in our time to demonstrate that all employees should be protected from arbitrary and unjust dismissal. Almost every other major industrial country now recognizes that employees are entitled to at least this minimum measure of security in their jobs. In this country we have also recognized that this protection is an essential element of industrial justice: unions and employers have manifested their acceptance of this principle in the most concrete fashion possible, by including just cause clauses in their collective agreements and vesting arbitrators with binding authority to protect employees from unjust discipline. For most employees, their job is the most valuable thing they possess; it is not a figure of speech but a statement of economic and social reality to say that employees have property rights in their jobs. Such valuable interests have a compelling claim to legal protection. Just as unions have provided legal protection by contract for many employees, society should provide legal protection by statute for other employees.

In the last five years, the introduction of legislative proposals limiting "wrongful discharge" have become common. The AFL-CIO Executive Council has formally endorsed the concept of wrongful discharge legislation, and the American Bar Association is now seriously looking at the statutory alternative. So far, only one state has enacted a wrongful discharge statute. In 1987, Montana preempted all prior common law remedies with the Wrongful Discharge From Employment Act. [40]

Montana's act is remarkably brief in structure, prohibiting "wrongful discharges" 1) in retaliation for an employee's refusal to violate public policy or for reporting a violation of public policy, 2) in violation of express provisions of an employer's written personnel policies, and 3) for reasons other than good cause after the employee serves any probationary period. "Good cause" is defined as "reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reason" – a definition which should keep Montana's lawyers heavily-employed for many years. Plaintiffs are entitled to recover up to four years of lost wages and fringe benefits (with interest) from the date of discharge. Punitive damages are recoverable if the plaintiff can show actual fraud or malice. Arbitration of claims is optional, but attorneys fee awards are provided for against the party declining to arbitrate.

The Montana statute has been upheld against claims that it denies the right to full legal redress and to equal protection. [41] The precedent has thus been set that statutes may be used to altar common law causes of action, remedies, and redress in the employment setting.

Most of the bills which have been introduced in various states follow much the same pattern. Their intent is to publicly interfere with private employment contracts, forcing notions of fairness and justice upon the rights of the employer. All exhibit a distrust of the free market, the ability of the employee to function freely and with mobility in that market, and the propensity of employers to make rational and reasonable employment decisions on their own without the "help" of legal guidelines. All insist on using sweeping approaches to deal with perceived problems on the fringes.

For example, Senate Bill 72, introduced in Massachusetts by Senator Costello in 1989, states in its purpose section that "it is in the interest of the commonwealth to protect employees against arbitrary dismissals and to encourage fairness and equitable treatment in the workplace". It would prohibit the constructive or actual termination of any non-managerial /supervisory employee employed more than six months and not covered by a collective bargaining agreement "without just cause", sending all disputes not resolved in mediation to arbitration.

Senate Bill 282, introduced in California by Senator Bill Greene, would establish a Justice and Dignity in Employment Act. The act would prohibit the discharge of a 6-month employee except for just cause, very narrowly defined as including but not limited to excessive absenteeism or tardiness, loafing or sleeping on the job, leaving work without permission, fighting, insubordination, using profanity, or abusive language to supervisors or to other employees, falsifying records, theft or dishonesty, incompetence, gross negligence, or carelessness, gambling, possessing or using drugs or alcohol at work, or reporting to work under the influence of drugs or alcohol. The bill would require detailed notice to the employee of the reason for discharge, as well as mediation and arbitration of any dispute.

In an interesting twist, Senate Bill 115, introduced in California by Senator Rosenthal in 1988, would simply prohibit any employer from asking any employee or applicant for employment to sign any agreement which would specifically permit the employer to dismiss the employee "at will", for any reason or no reason at all, thereby statutorily destroying the employer disclaimer defense.

A somewhat less intrusive Senate Bill 222, introduced in California by Senator Beverly in 1989, would prohibit 5-year employees making less than $100,000 per year from being terminated without good cause (defined as "a legitimate business reason ... (i)ntended to be less restrictive on management than just cause"). It would prohibit 3-year hourly or nonsupervisory employees making less than $15,000 per year from being discharged without just cause (defined as "a reason or reasons which a reasonable employer, in the factual context in question, would find sufficient to justify discharge"). It would require use of California's State Mediation Service, followed by optional arbitration.

Michigan too has seen proposals for the imposition of "just cause" termination requirements on private employment relationships. House Bill 5155, introduced by Representative Perry Bullard in 1983, would have given all non-union employees good cause employment protection, utilizing a new state arbitration system to resolve disputes.

All of these legislative proposals would affirm in statutory law what activist courts in many states have to a large extent already imposed through common law. They would make concrete and universal the shift from private determinations of the employment relationship to public determinations, where each jury or judge has the power to decide, based on shifting notions of fairness and justice, who will work for whom, and under what conditions.

Given the numerous and varying exceptions to the employment-at-will doctrine already crafted by many of the nations' courts, it may be fair to ask whether a statute prohibiting unjust discharges might not be a better solution for both the employee and the employer. If there is a confusing quilt of state laws, uncertain standards, expensive litigation and enormous damage awards, isn't a stable, uniform statutory scheme preferable?

It is in the context of this question, where a statutory abrogation of the employment-at-will doctrine is seen as a way to balance the interests of employers and employees, that the National Conference of Commissioners on Uniform State Laws (NCC) has explored the feasibility of recommending a uniform act to the states. The road taken by the drafting committee has been a rocky one. Interest groups having a financial stake in the issue (especially lawyers) have consistently expressed strong objections to any proposal daring to strike a balance between employer needs and employee desires.

The essence of the proposal has been to provide "good cause" protection against discharge for employees, while sharply limiting the range of available remedies to reinstatement, with or without backpay, and severance pay when reinstatement is unfeasible. Compensatory and punitive damages are eliminated. Attorneys' fees are permitted prevailing plaintiffs. "Good cause" is defined to emphasize management's right to make legitimate good faith business decisions and react to changing economic conditions. Employers are permitted to contract with individual employees for a continuing "at-will" status, as long as the employee is guaranteed a fixed minimum amount of severance pay, graduated according to length of service. Subsidiary tort claims arising out of a termination are extinguished. Arbitration is preferred.

The NCC draft committee proposal discussed in 1990 would cover all workers who work at least 20 hours per week (approximately 90% of the workforce) and who work for employers with 5 or more employees. Draft committee staff informed the committee that the 5-or-more-employee standard would eliminate 62.1 % of the nation's companies, but would only disqualify 8% of the nation's workforce. Small employers would retain greater discretion, while the overwhelming majority of workers would be protected.

The logic behind this balancing scheme is simple. On the one hand, employees should be given job security and protection from employer arbitrariness. On the other hand, employers cannot be subjected to substantial liability once all employees are given protection. Employers must retain enough discretion to be able to run their businesses effectively. Litigation must be avoided as much as possible, with disputes resolved as quickly and inexpensively as possible, for the benefit of both sides.

If one assumes that employment-at-will has been defeated, this scheme of uniform full "good cause" protection, with strictly limited remedies, offers a better balance than the common law, providing substantially more certainty than a system of hit-and-run judicial intervention. It still permits constant public intervention into the employment relationship, with shifting interpretations of what is "reasonable" and/or a "legitimate good faith business decision". But at least there is a uniform definitional standard, with the focus of employers and employees concentrated on one clearly identifiable law.

However, the assumption of employment-at-will's defeat may be premature. The doctrine may in fact not be quite dead yet. Freedom of contract and free market economics may still have some life left when it comes to the employment relationship. If employment-at-will has a chance to survive, the NCC approach is not yet appropriate.