dissenting.
The computer controlling production at a paper mill crashes. While the system remains down, the manager responsible for its operation, told by his physician to “take it easy,” takes the weekend off, and is fired. To say that this states a claim for wrongful discharge is to say that hard work contravenes the law of Wisconsin.
We should take the Supreme Court of Wisconsin at its word: a firm may sack an at-will employee “for good cause, for no cause, or even for cause morally wrong,” Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 567, 335 N.W.2d 834, 837 (1983), unless the discharge “clearly contravenes the public welfare and gravely violates paramount requirements of public interest.” 113 Wis.2d at 573, 335 N.W.2d at 840 (emphasis added). The cases defining limits on employers’ choice overflow with such restrictive language. An employee has a claim only when “the discharge is contrary to a fundamental and well-defined public policy as evidenced by existing law.” Ibid. The policy in question must be “clear and compelling”. 113 Wis.2d at 574, 335 N.W.2d at 841. The employee must identify a provision “evidencing a ‘specific declaration’ of this fundamental and well-defined public policy.” Wandry v. Bull’s Eye Credit Union, 129 Wis.2d 37, 42, 384 N.W.2d 325, 327 (1986). General interests, such as freedom to complain about violations of safety statutes or to refrain from participating in pension plans, do not satisfy this requirement. Bushko v. Miller Brewing Co., 134 Wis.2d 136, 396 N.W.2d 167 (1986); Schultz v. Production Stamping Corp., 148 Wis.2d 17, 434 N.W.2d 780 (1989). The most recent decision, Winkelman v. Beloit Memorial Hospital, 168 Wis.2d 12, 483 N.W.2d 211 (1992), restates the rule thus, at 215: “the employee’s refusal to violate a formally stated, fundamental and well-defined public policy which has the effect of law” may not be a ground of discharge. Winkelman adds administrative regulations to statutes and constitutional provisions as sources of public policy but leaves the substance of the doctrine untouched.
Where is Wisconsin’s “formally stated, fundamental and well-defined public poli*368cy” against long hours? How does it “gravely” violate the “paramount” requirements of the public interest to tell an employee to do sedentary work in a clean office? Wilcox points to a general safety law, Wis.Stat. § 103.02, that has been in force since 1867 without a single interpretation by a state court. This statute provides that “[n]o person may be employed or be permitted to work in any place of employment or at any employment for such period of time during any day, night or week, as is dangerous or prejudicial to the person’s life, health, safety or welfare.” Whatever this means, it is not clear, and it hardly supports my colleagues’ conclusion that all risk with “some degree of substan-tiality” violates the law of Wisconsin. Risks are ubiquitous. Taxi drivers have collisions. Iron workers fall from their perches. Workers in battery plants inhale lead. See UAW v. Johnson Controls, Inc., — U.S. -, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991). Football players get thrown through the air and stomped on. If any substantial risk violates the law in Wisconsin, then Johnson Controls must close, and the Green Bay Packers will be sent packing.
Adjurations to safety do not create “well-defined” duties. That is why the Occupational Safety and Health Administration fills the Federal Register with regulations detailing permissible degrees of risk. It is not a violation of law to expose workers to lead, although it is a violation to expose them to more than 50 micrograms of lead per cubic meter of air. 43 Fed.Reg. 52952 (1978). Rules for coal mines, cotton dust, football helmets, and other dangerous places and things are similarly detailed. So far OSHA has thought it unnecessary to prescribe rules for stress that may cause heart trouble for desk-bound managers.
More, the language I have quoted from § 103.02, far from specifying “fundamental” norms, probably is no longer law at all, given the preemptive force of federal statutes. See National Solid Wastes Management Ass’n v. Killian, 918 F.2d 671 (7th Cir.1990), cert. granted under the name Gade v. National Solid Wastes Management Ass’n, — U.S. -, 112 S.Ct. 656, 116 L.Ed.2d 748 (1991). Although the parties do not discuss this obstacle, a court may notice on its own that it has been asked to apply nonexistent rules. Kamen v. Kemper Financial Services, Inc., — U.S. -, -, 111 S.Ct. 1711, 1718, 114 L.Ed.2d 152 (1991); Independent Insurance Agents of America, Inc. v. Clarke, 955 F.2d 731, 733-34 (D.C.Cir.1992). The “general duty clause” of 29 U.S.C. § 654(a)(1), and 29 C.F.R. § 2200.35(c), providing for enforcement as if the statute were a regulation, cover the same ground as § 103.02. The Supreme Court may disagree with the holding of National Solid Wastes Ass’n that once a federal rule is in place no state may “in a direct, clear and substantial way, [regulate] worker health and safety.” 918 F.2d at 679. While this court’s view stands, however, Wisconsin’s statute is of doubtful force. And because in Wisconsin constraints on the discharge of at-will employees depend on a statute or rule — a “formally stated, fundamental and well-defined public policy which has the effect of law” — the common law would not step in to replace the missing § 103.02.
The solitary clause sounding like a rule does not assist Wilcox. Wis.Stat. § 103.85 provides that an employee must be allowed “at least 24 consecutive hours of rest in every 7 consecutive days”. It excepts cases of “breakdown of machinery or equipment ... requiring the immediate services of experienced and competent labor to prevent ... suspension of necessary operations”. A “breakdown” at Niagara required Wilcox’s “immediate services” to prevent a “suspension of necessary operations”. My colleagues assert that “as matters turned out the exception did not apply: Wilcox did have the computer repaired (as he had promised) by the time that Niagara resumed production on Wednesday.” 965 F.2d at 363 n. 11. This assumes that the exception is assessed ex post. The right perspective is ex ante, as things reasonably appear to the employer at the time it makes the demand. Niagara knew that Wilcox had failed to get the computer back in operation despite several days of work and was not required to accept his word that *369two additional days would be enough. Balky computers respond more to inspiration (that is, to sleuthing the problem) than to raw hours of labor. The penalty comes ex post, no doubt, but the question for us is whether Niagara was entitled to make the demand that Wilcox show up over the weekend; if it was entitled to make the demand, it was entitled to penalize its worker’s refusal to comply. An airline would have good cause to fire a mechanic who failed to repair a broken part on a Boeing 747, although the plane did not crash. Any employer is entitled to demand a margin of safety. At all events, Wilcox could have had 24 hours off and still complied with his employer’s demand by working on Sunday. He chose not to.
Section 103.02 cannot sensibly be divorced from § 103.85 and read to forbid long hours. Executives are prone to heart attacks (rich food, sedentary work, and high stress are a deadly combination), ulcers, and other occupational diseases of the managerial class. Does this mean that in Wisconsin the executive suites must be emptied on weekends? Can there be a senior manager whose physician has not told him to “take it easy”? I cannot believe that these words, which after “Take two aspirin and call me in the morning” are the most common in medicine, authorize managers to rest up whenever crisis makes their skills most urgently needed.
Wilcox’s real beef is not that repairing computers on weekends is unusually dangerous. It is that his heart condition requires kid-gloves treatment. If so, he was in the wrong job, and after leaving Niagara could take a less stressful one. Perhaps Wisconsin’s handicap law, Wis.Stat. § 111.-34, requires accommodation of persons such as Wilcox, but he abjured any relief it offers. We disserve a real public policy of Wisconsin — one requiring resort to administrative remedies as a prerequisite to litigation about handicap, discrimination — in allowing Wilcox to treat § 103.02 as if it required accommodation of abnormal medical conditions.
Requiring an employee to show “fundamental” and “well-defined” policy with “paramount” requirements prevents the evasion of the concrete rules, such as § 103.85 and the handicap-discrimination regimen, by reference to open-ended statutes such as § 103.02. Nothing in weekend work is hazardous to an ordinary employee, and Wilcox has by-passed the administrative remedies essential to an argument that his heart condition required accommodation. Generic claims such as “they exposed me to unreasonable risk” are easy to make, costly to defend, and all but impossible to resolve short of a jury trial. They create in operation the good-faith rule that Brockmeyer expressly rejected. 113 Wis.2d at 569-70, 335 N.W.2d at 838. The costs of such litigation, and the inevitable errors in application (juries may not share the firm’s concern with efficient production and sometimes let sympathy get the better of them), lead to the same pathology that infests civil service systems. Employers keep inadequate workers around and tolerate their lower productivity, because it is so expensive and risky to realign the match between persons and jobs.