dissenting.
Jackson v. Morris Communications Corp.1 was correctly decided within the structure of our long-established common law pertaining to at-will employment. Because today’s decision significantly expands that structure, I respectfully dissent.
The general principle that an employer may discharge an at-will employee at any time with or without reason, so long as the discharge is not constitutionally, statutorily, or contractually prohibited, recognizes the right of the employer to determine the makeup of its workforce without judicial oversight. Just as an at-will employee is free to leave an employment relationship without recourse by the employer, so is the employer free to terminate the relationship, so long as it does not act unlawfully or in breach of a contract. This rule applies even where the result may seem harsh to an outside observer.2 The public policy exception to this rule holds that an at-will employee “ ‘may claim damages for wrongful discharge when the motivation for the firing contravenes public policy.’”3 The exception has been narrowly applied in discharge cases, based upon our recognition that
courts must use care in creating new public policy and that “ ‘recognition of an otherwise undeclared public policy as a basis for a judicial decision involves the application of a very nebulous concept to the facts of a given case, and that declaration of public policy is normally the function of the legislative branch.’ ”4
*874In Malone v. American Bus. Info.,5 we declined to apply the public policy exception to a claim that an employee was discharged for exercising rights under the Nebraska Wage Payment and Collection Act, reasoning that the act did not declare “‘an important public policy with such clarity as to provide a basis for a civil action for wrongful discharge.’ ” But in Jackson, after conducting a detailed analysis of the policy considerations underlying the Nebraska Workers’ Compensation Act, we held that the public policy exception permitted “an action for retaliatory discharge when an employee has been discharged for filing a workers’ compensation claim.”6
If an employer’s decision to discharge an at-will employee is exempt from judicial oversight except in the limited circumstance where the public policy exception applies, it logically follows that decisions affecting the terms and conditions of an at-will employment relationship which do not terminate the relationship should be entitled to an even greater degree of deference. Until today, we have never imposed common-law restrictions upon an employer’s right to make such decisions. The majority has done so in this case by transforming a narrow exception to the rule of nonliability for discharge into a new theory of liability for retaliatory demotion. In my opinion, recognition of this new cause of action is unwise. While I would be willing to extend the holding in Jackson to circumstances constituting a constructive discharge, which is not alleged in this case, I would go no further.
I do not condone any form of retaliation against an employee who files a workers’ compensation claim. But the reality is that a job-related injury may bring about legitimate changes in an employment relationship. A workers’ compensation claimant may be temporarily or permanently prevented from performing job requirements by the physical effects of the injury. Will a transfer to a different position, perhaps at a reduced wage, in order to accommodate the worker’s diminished physical *875abilities, now be deemed a retaliatory demotion? An employee who has filed a workers’ compensation claim is subject to the employer’s work rules to the same extent as other employees. Will routine disciplinary actions involving workers’ compensation claimants now be the basis for a retaliation lawsuit? If there is a restructuring necessitated by changing business conditions, will the employer be required to exempt workers’ compensation claimants from any changes in hours or job status in order to avoid a retaliation claim? Will an employer be prevented from taking measures to address the unsatisfactory job performance of an employee who has a pending workers’ compensation claim?
The concurring opinion suggests that to resolve these concerns, we can simply apply the “McDonnell Douglas[7] burden-shifting analysis familiar from discrimination cases.” Even if application of this analysis would be a workable solution, the fact is that the analysis was developed and is used by courts to adjudicate express statutory prohibitions of various forms of workplace discrimination. We simply are not presented with such a prohibition here. Instead, the majority holds for the first time in Nebraska that an implicit declaration of public policy can serve as the basis of an employment discrimination claim in a nondischarge situation. All of the cases cited in the concurring opinion as utilizing McDonnell Douglas “to resolve similar claims of adverse employment actions” involved express statutory causes of action. Federal and state employment discrimination statutes include defined terms, jurisdictional requirements, specific statements of prohibited conduct and available defenses, and enforcement mechanisms.8 No such detailed guidance is provided with respect to the new common-law cause of action which the court recognizes today, and there is no assurance that it will be construed in the future in the manner predicted in the concurring opinion.
*876It is true that in Riesen v. Irwin Indus. Tool Co.,9 we applied the McDonnell Douglas burden-shifting analysis to the established common-law cause of action for wrongful discharge under the public policy exception to the doctrine of employment at will. The analysis was appropriate in part because wrongful discharge is actionable both under employment discrimination statutes and, in more limited circumstances, at common law. But until today, there has been no common-law cause of action which would impose civil liability for an employer’s action which does not result in termination of the employment relationship. Unlike the circumstance of wrongful discharge, an employer will have no means of knowing in advance what specific conduct is proscribed under the new common-law cause of action which today’s majority opinion creates. To say that we will use McDonnell Douglas to figure it all out simply ignores the fundamental difference between recognizing a wrongful discharge claim based on an implicit legislative articulation of public policy and recognizing an entirely new cause of action arising from the same source.
As the majority notes, two other courts have specifically declined to recognize a new cause of action for retaliatory demotion within an at-will employment relationship. These cases generally reason that retaliatory demotion or discrimination does not implicate a clear and substantial public policy to the same extent as a discharge and that creating a new cause of action would “encourage myriad claims against employers.”10 I agree with the reasoning of these courts, especially to the extent that they find that an implicit articulation of public policy is an insufficient basis on which to predicate the judicial recognition of a new, common-law cause of action.
Instead, if there are to be restrictions upon an employer’s freedom to make decisions concerning the terms and conditions of on-going at-will employment, it is my view that they *877should be expressly imposed by the Nebraska Legislature.11 The Legislature has enacted statutes prohibiting retaliation or discrimination based upon an employee’s exercise of certain statutory rights.12 In my opinion, it should be left to the Legislature to decide whether or to what extent the public policy considerations underlying the Nebraska Workers’ Compensation Act require or warrant regulation of the terms and conditions of an existing at-will employment relationship.
For these reasons, I would affirm the judgment of the district court.
Heavican, C J., joins in this dissent.Jackson v. Morris Communications Corp., 265 Neb. 423, 657 N.W.2d 634 (2003).
See, Goff-Hamel v. Obstetricians & Gyns., P.C., 256 Neb. 19, 588 N.W.2d 798 (1999) (Stephan, J., dissenting); Hamersky v. Nicholson Supply Co., 246 Neb. 156, 517 N.W.2d 382 (1994).
Ambroz v. Cornhusker Square Ltd., 226 Neb. 899, 902, 416 N.W.2d 510, 513 (1987), quoting Mau v. Omaha Nat. Bank, 207 Neb. 308, 299 N.W.2d 147 (1980).
Schriner v. Meginnis Ford Co., 228 Neb. 85, 91, 421 N.W.2d 755, 759 (1988), quoting Adler v. American Standard Corp., 830 F.2d 1303 (4th Cir. 1987).
Malone v. American Bus. Info., 262 Neb. 733, 740, 634 N.W.2d 788, 793 (2001), quoting Schriner v. Meginnis Ford Co., supra note 4.
Jackson v. Morris Communications Corp., supra note 1, 265 Neb. at 432, 657 N.W.2d at 641.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
See, e.g., 42 U.S.C. §§ 2000e, 2000e-2, 2000e-3, and 2000e-5 (2000); Neb. Rev. Stat. §§ 48-1104, 48-1108, 48-1111, and 48-1118 (Reissue 2004).
Riesen v. Irwin Indus. Tool Co., 272 Neb. 41, 717 N.W.2d 907 (2006).
See Touchard v. La-Z-Boy Inc., 148 P.3d 945, 955 (Utah 2006). See, also, Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29, 645 N.E.2d 877, 206 Ill. Dec. 625 (1994).
See, e.g., Conn. Gen. Stat. Ann. § 31-290a (West 2003) (prohibiting discharge or discrimination against employee who files workers’ compensation claim and prescribing nature and scope of remedy); Mo. Ann. Stat. § 287.780 (West 2005) (prohibiting discharge or discrimination against employee for exercising rights under workers’ compensation law, enforceable by civil action for damages); N.C. Gen. Stat. § 95-241 (2005) (prohibiting discrimination or any retaliatory action against employee who exercises statutory rights and establishing defense to such claims where employer can show it would have taken same action in absence of protected activity of employee).
See Neb. Rev. Stat. §§ 48-1004 (Reissue 2004) (prohibiting discrimination based upon assertion of rights under statute prohibiting age discrimination in employment) and 48-1114 (Reissue 2004) (prohibiting discrimination based upon exercise of rights under Fair Employment Practice Act).